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£     THE  CIVIL  CODE 

OF  THE 

REPUBLIC  OF  PANAMA 

And  Amendatory  Laws 


Continued  in  Force  in  the  Canal  Zone* 

Isthmus   of  Panama,    by 

Executive  Order  of 

May  9, 1904 

j 

Translated  under  the  direction  of 

CHARLES  E.  MAGOON, 

General  Counsel,  Isthmian  Canal  Commission, 

By  FRANK  L.  JOANNINI. 


ISTHMIAN    CANAL    COMMISSION. 
WASHINGTON,  D.  C. 

I905. 


,s  i 


? 


H  °t  °  17 


JAM     nn     fq*rt 

TABLE  OF  CONTENTS. 


Page. 
?ree  No.  4  of  1903  of  the  Junta  of  the  Provisional  Government  of 

the  Republic  of  Panama : 1 

torical  Introduction ...... 3 

t  of  works  consulted 9 

Dlanatory  note 10 

v  57  of  April  15,  1887,  on  the  adoption  of  Codes  and  the  unifica- 
tion of  the  National  Legislation  (Arts.  1  to  4 11 

^      stitution  of  the  Republic  (Arts.  19  to  52) 12 


Civil  Code  of  the  Union. 


juminary  Title 19 

Chapter  1. — Object  and  force  of  this  Code 19 

Chapter  2. — Of  the  law 19 

Chapter  3. — Effects  of  the  law   20 

Chapter  4. — Interpretation  of  the  law 23 

Chapter  5. — Definition  of  various  words  of  frequent  use  in  the 

laws 24 

Chapter  6. — Repeal  of  laws 31 

)K  First. — Of  Persons 33 

le  I. — Persons  with  Regard  to  their  Nationality  and  Dom- 

^  iciLE 33 

Chapter  1 . — Division  of  persons 33 

Chapte     ,    -Of  domicile  in  so  far  as  it  depends  on  the  residence 

he  intention  to  remain  therein 33 

Chapter  3. — Of  domicile  in  so  far  as  it  depends  on  the  condition 

or  civil  status  of  a  person 35 

LE  II. — Of  the  Beginning  and  End  of  the  Existence  of  Per- 
sons    36 

Chapter  1. — Of  the  beginning  of  the  existence  of  persons 36 

Chapter  2. — Of  the  end  of  the  existence  of  persons 36 

Chapter  3. — Of  the  presumption  of  death  by  disappearance. ...  37 

LE  III. — Of  Espousals 41 

le  IV. — Of  Marriage . 42 

;  le  V. — Of  the  Nullity  of  Marriage  and  its  Effects 48 

LE  VI. — Dissolution  of  Marriage 52 


VI 


Page. 

Title  VII. — Of  Divorce,  its  Causes  and  Effects 53 

Paragraph  i. — Of  divorce 53 

Paragraph  2. — Causes  for  divorce 53 

Paragraph  3. — Effects  of  divorce 54 

Title  VIII. — Of  Second  Nuptials 57 

Title  IX. — Obligations  and  Rights  Between  the  Spouses 59 

Chapter  1. — General  rules 59 

Chapter  2. — Exceptions  relative  to  the  profession  or  trade  of 

the  wife ! 62 

Chapter  3. — Exceptions  relative  to  a  simple  separation  of  prop- 
erty    62 

Title  X. — Of  Legitimate  Children  Conceived  in  Matrimony.  .  .  66 

Chapter  1. — General  rules   66 

Chapter  2. — Special  rules  for  cases  of  divorce  and  nullity  of 

marriage 68 

Chapter  3. — Rules  relative  to  the  posthumous  child 70 

Chapter  4. — Rules  relative  to  the  case  of  a  woman  contracting 

a  subsequent  marriage.  .  .  .  : 70 

Title  XL — Of  Legitimated  Children 71 

Title  XII. — Of  the  Rights  and  Obligations  of  Parents  and 

Legitimate  Children 74 

Title  XIII. — Of  Adoption 78 

Title  XIV. — Of  Paternal  Power 81 

Title  XV. — Of  Emancipation 86 

Title  XVI. — Of  Natural  Children 88 

Title  XVII. — Of  the  Obligations  and  Rights  of  Parents  and 

Natural  Children 88 

Title  XVIII. — Of  Disputed  Maternity 88 

Title  XIX. — Of  Qualification  as  to  Age 90 

Title  XX. — Of  Proofs  of  the  Civil  Status 91 

Chapter  1. — Preliminary  provisions 91 

Chapter  2. — Register  of  births 91 

Chapter  3. — Register  of  deaths 92 

Chapter  4. — Register  of  marriages , 94 

Chapter  5. — Register  of  the  acknowledgment  of  natural  chil- 
dren    95 

Chapter  6. — Register  of  adoptions 95 

Chapter  7. — General  provisions 95 

Title  XXI. — Support  Due  by  Law  to  Certain  Persons 102 


VI 1 


Pagk. 

Title  XXII. — Of  Tutorships  and  Curatorships  in  General.  . .  .  105 

Chapter  1. — Definitions  and  rules  in  general 105 

Chapter  2. — Testamentary  tutorship  or  guardianship 107 

Chapter  3. — Of  legal  tutorship  or  curatorship 109 

Chapter  4. — Of  dative  tutorship  or  curatorship no 

Title  XXIII. — Of  the  Measures  and  Formalities  which  must 

Precede  the  Exercise  of  Tutorship  or  Curatorship in 

Title  XXIV. — Of  the  Administration  of  Tutors  and  Curators 

with  Regard  to  the  Property 114 

Title  XXV. — Special  Rules  Relating  to  Tutorship 121 

Title  XXVI. — Special  Rules  Relating  to  the  Curatorship  of 

a  Minor , 123 

Title  XXVII. — Special  Rules  Relating  to  the  Curatorship  of 

Spendthrifts 124 

Title  XXVIII. — Special  Rules  Relating  to  the  Curatorship 

of  the  Insane 127 

Title  XXIX. — Special  Rules  Relating  to  the  Curatorship  of 

Deaf-Mutes 130 

Title  XXX. — Curatorship  ad  bona \  131 

Title  XXXI.— Of  Associate  Curators 135 

Title  XXXII. — Of  Special  Curators 135 

Title  XXXIII. — Incapacities  for  and  Excuses  from  Exercis- 
ing Tutorship  or  Curatorship 136 

Chapter  1. — Of  incapacities 136 

Paragraph  1 . — Rules  relating  to  physical  and  moral  defects  136 

Paragraph  2. — Rules  relating  to  sex 137 

Paragraph  3. — Rules  relating  to  age 137 

Paragraph  4. — Rules  relating  to  family  relations 138 

Paragraph  5. — Rules  relating  to  the  opposition  of  interests 
or  differences  of  religion  between  the  guardian  and 

ward * 138 

Paragraph  6. — Rules  relating  to  incapacities  occurring  sub- 
sequent to  appointment 139 

Paragraph  7. — General  rules  regarding  incapacities 139 

Chapter  2. — Of  excuses 140 

Chapter  3. — Rules  common  to  incapacities  and  excuses 142 

Title  XXXIV. — Of  the  Compensation  of  Tutors  and  Curators.  143 

Title  XXXV. — Of  the  Removal  of  Tutors  and  Curators 146 


Vlll 


Page. 

Title  XXXVI. — Juristic  Persons 147 

[00K  Second. — Of  Property  and  its  Ownership,  Possession, 

Use  and  Enjoyment 151 

Title  I. — Of  the  Different  Kinds  of  Property 151 

Chapter  1 . — Of  corporeal  things 151 

Chapter  2. — Of  incorporeal  things , 153 

Title  II. — Of  Ownership 154 

Title  III. — Of  Property  of  the  Union 155 

Title  IV. — Of  Occupancy 157 

Title  V. — Of  Accession 161 

Chapter  1. — Of  the  accessions  of  fruits 161 

Chapter  2. — -Of  the  accessions  of  the  soil 162 

Chapter  3. — Of  the  accession  of  one  movable  to  another 164 

Chapter  4. — Of  the  accession  of  movables  to  immovables 165 

Title  VI. — Of  Tradition 167 

Chapter  1. — General  provisions 167 

Chapter  2. — Of  the  tradition  of  corporeal  movables 169 

Chapter  3. — Of  other  kinds  of  tradition. 170 

Title  VII. — Of  Possession 171 

Chapter  1. — Of  possession  and  its  different  kinds 171 

Chapter  2. — Of  modes  of  acquiring  and  losing  possession 1 74 

Title  VIII. — Of  Limitations  of  Ownership  and  Primarily  of 

Fiduciary  Property 177 

Title  IX. — Of  the  Right  of  Usufruct. 182 

Title  X. — Of  the  Rights  of  Use  and  Habitation 191 

Title  XI. — Of  Servitudes 193 

Chapter  1. — Of  natural  servitudes 194 

Chapter  2. — Of  legal  servitudes 196 

Chapter  3. — Voluntary  servitudes 202 

Chapter  4. — Extinction  of  servitudes 203 

Title  XII. — Of  Revendication 205 

Chapter  1. — What  things  may  be  revendicated 205 

Chapter  2. — Who  may  revendicate 205 

Chapter  3. — Against  whom  actions  for  revendication  may  be 

brought 206 

Chapter  4. — Mutual  prestations 207 

Title  XIII. — Of  Possessory  Actions 211 

Title  XIV. — Of  Some  Special  Possessory  Actions 214 


Xlll 

Page. 

Title  XXXV. — Of  Suretyship 477 

Chapter  1. — Of  the  constitution  and  requisites  of  suretyship ...   477 
Chapter  2. — Of  the  effects  of  suretyship  between  the  creditor 

and  the  surety 480 

Chapter  3. — Of  the  effects  of  suretyship  between  the  surety  and 

the  debtor 482 

Chapter  4. — Of  the  effects  of  the  surety  among  the  co-sureties. .   484 
Chapter  5. — Of  the  extinction  of  the  suretyship 485 

Title  XXX VI. —Of  the  Contract  of  Pledge 486 

Title  XXXVII.— Of  Mortgage 490 

Title  XXXVIII. — Of  Antichresis 495 

Title  XXXIX.— Of  Transaction 496 

Title  XL. — Of  the  Preference  of  Credits 499 

Title  XU. — Of  Prescription 504 

Chapter  1 . — Of  prescription  in  general 504 

Chapter  2. — Of  the  prescription  by  which  things  are  acquired .  .    505 
Chapter  3. — Of  prescription  as  a  means  of  extinguishing  judicial 

actions 508 

Chapter  4. — Of  certain  actions  which  prescribe  in  a  short  time .    509 

Title  XLII. — Notaries  Public  in  the  Territories 510 

Chapter  1 510 

Chapter  2. — Books  to  be  kept  by  notaries 512 

Chapter  3. — Acts  and  instruments  passing  before  notaries  and 

copies  which  they  issue 514 

Chapter  4. — Of  the  cancellation  of  public  instruments 522 

Chapter  5. — Of  the  archives  of  notaries  and  their  inspection ...    523 

Chapter  6. — Fees  of  the  notary  for  acts  of  his  office 525 

Chapter  7. — Manner  of  substituting  the  notary  for  certain  acts 

in  certain  places 527 

Title  XLIII. — Of  the  Registration  of  Public  Instruments.  . .  .  529 

Chapter  1. — Purpose  of  the  registration 529 

Chapter  2. — Registration  office  and  duties  of  the  official  in 

charge  thereof 529 

Chapter  3. — Books  to  be  kept  by  the  registrar 530 

Chapter  4. — Titles,  acts  and  documents  subject  to  registration .  532 

Chapter  5. — Manner  of  making  the  registration. .  . 534 

Chapter  6. — Fees  of  the  registrar 537 

Chapter  7. — Effects  of  registration 538 

Chapter  8. — Cancellation  of  the  record 538 

Chapter  9. — Archives  of  the  registrar's  office :  its  inspections .  .  539 

Title  XLIV. — Observance  of  this  Code 540 


XIV 

Page. 
Law  57  of  1887,  On  the:  Adoption  of  Codes  and  the  Unifica- 
tion of  the  National  Legislation 543 

Additions  to  and  amendments  of  the  Civil  Code — Preliminary 

title 544 

Chapter  1. — Of  the  law 544 

Chapter  2. — Definitions  of  various  words  of  frequent  use  in  the 

laws 544 

Book  First. — Of  Persons 545 

Title  I. — Of  the  Beginning  and  End  of  Persons 545 

Chapter  1 545 

Chapter  2. — -Of  the  presumption  of  death  by  disappearance. .  .  .  545 

Title  II. — Of  Marriage 546 

Title  III. — Of  the  Nullity  of  Marriage  and  its  Effects 546 

Title  IV. — Of  Legitimate  Children  Conceived  in  Marriage.  .  .  .  547 
First  and  last  chapter. — Special  rules  for  a  case  of  divorce  and 

nullity  of  marriage 547 

Title  V. — Of  Natural  Children 548 

Title  VI. — Of  Proof  of  the  Civil  Status 548 

First  and  last  chapter. — General  provisions 548 

Title  VII. — Special  Rules  Relating  to  the  Curatorship  of 

the  Deaf  and  Dumb 548 

Title  VIII. — Juristic  Persons 549 

Book  Third. — Of  Succession   Mortis    Causa   and    Donations 

Inter  Vivos • 549 

Title  I. — Rules  Relative  to  Intestate  Succession 549 

Title  II. — Of  Testamentary  Assignments 550 

Chapter  1. — Of  assignments  under  a  singular  title 550 

Chapter  2. — Of  revocable  donations 550 

Book  Fourth. — Title  I. — Purchase  and  Sale 550 

First  and  last  chapter. — Rescission  of  the  sale  on  account  of 

lesion  beyond  moiety 550 

Title  II. — Of  the  Cession  of  Rights 55 J 

First  and  last  chapter. — Of  personal  credits 551 

Title  III. — Of  Quasi  Contracts 55 1 

Chapter  1. — Of  the  quasi  contract  of  community 551 

Title  IV.— Preference  of  Credits 552 

Title  V. — Of  Notaries  Public 552 


XV 


Page. 

Title  VI. — Of  the  Registrar  of  Public  Instruments 552 

First  and  last  chapter. — Books  to  be  kept  by  the  registrar,  and 

titles,  acts  and  documents  subject  to  registration 552, 

Final  Provision 554 

Law  153  of  1887,  Supplementing  and  Amending  the  National 

Codes,  Law  61  of  1886,  and  Law  57  of  1887 .  555 

Part  First. — General  Rules  as  to  the  Validity  and  Applica- 
tion of  the  Laws 555 

Second  Part. — Civil  Legislation. — I.  Of  Persons 560 

§  1. — Civil  Status. — Marriage 560 

§  2. — Legitimation  of  children 561 

§  3. — Paternal  power 561 

§  4. — Natural  children 561 

§  5. — Rights  and  obligations  between  parents  and  natural  chil- 
dren    562 

§  6. — Illegitimate  children  not  formally  acknowledged 563 

§  7. — Proofs  of  the  civil  status 565 

§  8. — Juristic  persons •.  .  565 

II.— Of  Property 565 

§  1. — Public  Property 565 

§  2. — Literary  Property 565 

III. — Succession  Mortis  Causa. — Intestate  Succession 565 

IV. — Obligations 566 

§  1. — Promise  to  celebrate  contracts 566 


§  2 

§4 

§5 
§6 


— Absolute  nullities 567 

— Proofs  of  obligations 567 

— Aleatory  contracts 568 

— Public  instruments. — Registration 568 

— Rent  charges  (censos) 568 


Final  Part. — Various  Provisions :  .  573 

Law  30,  of  1888,  which  Amends  the  Judicial  Code  and  Various 

Other  Laws 574 

Marriage 574 

Quasi  Contract  of  Community 575 

Law  32  of  1886,  on  Literary  and  Artistic  Property 584 

Chapter  1 . — Definitions  and  general  provisions 584 

Chapter  2. — Of  the  transmission  of  literary  property.     Legal 

and  international  effects 585 

Chapter  3. — Of  the  inscription  and  other  legal  formalities 587 


XVI 


Page. 
Chapter  4. — Special  provisions  regarding  different    kinds  of 

works 588 

1. — Letters  and  private  papers 588 

2. — Oral  lessons  and  speeches 588 

3. — Transcriptions  and  anthologies 589 

4. — Translations  and  abridgments 589 

5. — Unedited,  anonymous  and  posthumous  works 589 

6. — Works  in  collaboration,  newspapers 590 

7. — Official  documents,  suits  and  causes 591 

8. — Dramatic  and  musical  works 592 

9. — Pictorial  and  plastic  works. 592 

Chapter  5. — Penalties 593 

Chapter  6. — Final  Provisions. . 594 


Index  . 595 


IX 


Page. 
Book  Third. — Of  Successions  Mortis  Causa  and  Donations 

Inter  Vivos 219 

Title  I. — Definitions  and  General  Rules 219 

Title  II. — Rules  Relating  to  Intestate  Succession 225 

Title  III. — Of  the  Form  of  Testaments 229 

Chapter  1. — Of  the  testament  in  general 229 

Chapter  2. — Of  the  solemn  testament  and  especially  of  that  exe- 
cuted in  the  Territories. . 231 

Chapter  3. — Of  the  solemn  testament  executed  in  the  States  or 

in  a  foreign  country 235 

Chapter  4. — Of  privileged  testaments 237 

Title  IV. — Of  Testamentary  Assignments 242 

Chapter  1. — General  rules 242 

Chapter  2. — Of  conditional  testamentary  assignments 245 

Chapter  3. — Of  limited  testamentary  assignments 246 

Chapter  4. — Of  modal  assignments 248 

Chapter  5. — Of  assignments  under  a  universal  title 249 

Chapter  6. — Of  assignments  under  a  singular  title 250 

Chapter  7. — Of  revocable  donations 256 

Chapter  8. — Of  the  right  of  accretion 258 

Chapter  9. — Of  substitutions 260 

Title  V. — Of  Forced  Assignments 262 

Chapter  1 . — Of  assignments  for  support  which  are  due  certain 

persons  262 

Chapter  2. — Of  the  conjugal  portion 262 

Chapter  3. — Of  legitimes  and  betterments 264 

Chapter  4. — Of  disinherison 269 

Title  VI. — Of  the  Revocation  and  Amendment  of  a  Testament  271 

Chapter  1. — Of  the  revocation  of  a  testament 271 

Chapter  2. — Of  the  amendment  of  testaments 271 

Title  VII. — Of  the  Opening  of  the  Succession,  and  of  its  Ac- 
ceptance, Repudiation  and  Inventory 273 

Chapter  1. — General  rules 273 

Chapter  2. — Special  rules  relating  to  inheritances 276 

Chapter  3. — Of  the  benefit  of  inventory 278 

Chapter  4. — Of  the  petition  of  inheritance  and  other  actions  of 

the  heir 280 

Title  VIII. — Of  Testamentary  Executors 282 

Title  IX. — Of  Fiduciary  Executors 288 

Title  X. — Of  the  Partition  of  the  Property 290 

Title  XI. — Of  the  Payment  of  Hereditary  and  Testamentary 
Debts 297 


X 

Page. 

Title  XII. — Of  the  Benefit  of  Separation 302 

Title  XIII. — Of  Donations  Inter  Vivos 304 

J3ooK  Fourth. — Of  Obligations  in  General  and  of  Contracts.  .   313 

Title  I. — Definitions 313 

Title  II. — Of  Acts  and  Declarations  of  Will 314 

Title  III. — Of  Civil  Obligations  and  of  those  Merely  Natural  3 1 9 

Title  IV.-Of  Conditional  and  Modal  Obligations 320 

Title  V. — Of  Limited  Obligations 324 

Title  VI.— Of  Alternative  Obligations 325  • 

Title  VII. — Of  Optional  Obligations 326 

Title  VIII. — Of  Indeterminate  Obligations 326 

Title  IX. — Of  Solidary  Obligations 327 

Title  X. — Of  Divisible  and  Indivisible  Obligations 330 

Title  XI. — Of  Obligations  with  a  Penal  Clause 333 

Title  XII. — Of  the  Effect  of  Obligations 335 

Title  XIII. — Of  the  Interpretation  of  Contracts 339 

Title  XIV. — Of  the  Manner  in  which  Obligations  may  be  Ex- 
tinguished and  Primarily  of  Solution  or  Actual  Payment  340 

Chapter  1 . — Of  actual  payment  in  general 340 

Chapter  2. — By  whom  payment  may  be  made 341 

Chapter  3. — To  whom  payment  is  to  be  made 341 

Chapter  4. — Where  payment  to  be  made 344 

Chapter  5. — How  payment  to  be  made 344 

Chapter  6. — Of  the  imputation  of  payments 345 

Chapter  7. — Of  payment  by  consignment 346 

Chapter  8.— Of  payment  with  subrogation 347 

Chapter  9. — Of  payment  by  the  cession  of  property  or  by  an  ex- 
ecutory action  of  the  creditor  or  creditors 349 

Chapter  10. — Of  payment  with  the  benefit  of  competency 351 

Title  XV. — Of  Novation 352 

Title  XVI. — Of  Remission 356 

Title  XVII. — Of  Compensation : 357 

Title  XVIII. — Of  Confusion 359 

Title  XIX. — Of  the  Loss  of  the  Thing  Due 360 

Title  XX. — Of  Nullity  and  Rescission 362 

Title  XXI.— Of  the  Proof  of  Obligations 365 


XI 


Page. 
Title  XXII. — Of   Marriage;  Agreements   and  the  Conjugal 

Partnership 368 

Chapter  1. — General  rules 368 

Chapter  2. — Of  the  assets  of  the  conjugal  partnership  and  its 

charges  370 

Chapter  3. — Of  the  ordinary  administration  of  the  property  of 

the  conjugal  partnership 377 

Chapter  4. — Of  the  extraordinary  administration  of  the  conju- 
gal partnership 379 

Chapter  5. — Of  the  dissolution  of  the  conjugal  partnership  and 

division  of  acquets  and  gains 380 

Chapter  6. — Of  the  renunciation  of  the  acquets  and  gains  made 
on  the  part  of  the  wife,  after  the  dissolution  of  the  partner- 
ship     383 

Chapter  7. — Of  the  dowry  and  of  donations  by  reason  of  mar- 
riage   1 384 

Title  XXIII.— Of  Purchase  and  Sale 386 

Chapter  1. — Of  capacity  for  the  contract  of  sale 386 

Chapter  2. — Form  and  requisites  of  a  contract  of  sale 387 

Chapter  3. — Of  the  price 388 

Chapter  4. — Of  the  thing  sold 389 

Chapter  5. — Of  the  immediate  effects  of  a  contract  of  sale 390 

Chapter  6. — Of  the  obligations  of  the  vendor  and  especially  of 

the  obligation  to  deliver 392 

Chapter  7. — Of  the  obligation  of  warranty  and  primarily  of  war- 
ranty in  case  of  eviction 394 

Chapter  8. — Of  warranty  against  redhibitory  vices 397 

Chapter  9. — Of  the  obligations  of  the  buyer ' 399 

Chapter  10. — Of  the  agreement  of  avoidance 401 

Chapter  1 1 . — Of  the  agreement  of  redemption 40 1 

Chapter  12. — Of  the  agreements  accessory  to  the  c6n tract  of 

sale 402 

Chapter  13. — Of  the  rescission  of  the  sale  on  account  of  lesion 

beyond  moiety 40  2 

Title  XXIV.— Of  Exchange 404 

Title  XXV. — Of  the  Cession  of  Rights 405 

Chapter  1 . — Of  personal  credits 405 

Chapter  2. — Of  the  right  of  inheritance 406 

Chapter  3. — Of  litigious  rights 406 

Title  XXVI. — Of  the  Contract  of  Lease 408 

Chapter  1 . — Of  the  lease  of  things 408 

Chapter  2. — Of  the  obligations  of  the  lessor  in  the  lease  of  things  409 


Xll 

PagK. 
Chapter  3. — Of  the  obligations  of  the  lessee  in  the  lease  of  things  4 1 3 

Chapter  4. — Of  the  expiration  of  the  lease  of  things 415 

Chapter  5. — Special  rules  relating  to  the  lease  of  dwellings, 

warehouses  and  other  buildings 419 

Chapter  6. — Special  rules  relating  to  the  lease  of  rural  property.  420 

Chapter  7. — Of  the  hiring  of  domestic  servants 422 

Chapter  8. — Of  contracts  for  the  construction  of  a  material 

work 423 

Chapter  9. — Of  the  hiring  of  immaterial  services 426 

Chapter  10. — Of  the  hiring  of  transportation 427 

Title  XXVII. — Of  Partnership 429 

Chapter  1. — General  rules 429 

Chapter  2. — Different  kinds  of  partnerships 430 

Chapter  3. — Principal  clauses  of  the  articles  of  partnership ....  430 

Chapter  4. — Administration  of  the  general  partnership 432 

Chapter  5. — Obligations  of  the  partners  to  each  other. . 434 

Chapter  6. — Obligations  of  the  partners  with  respect  to  third 

persons  436 

Chapter  7. — Dissolution  of  the  partnership 437 

Title  XXVIII.— Of  Mandate 441 

Chapter  1 . — Definitions  and  general  rules 44 1 

Chapter  2. — Of  the  administration  of  the  mandate 443 

Chapter  3.— Obligations  of  the  principal 447 

Chapter  4. — Of  the  termination  of  the  mandate 448 

Title  XXIX. — Of  Commodatum  or  Loan  for  Use 450 

Title  XXX. — Of  Mutuum  or  Loan  for  Consumption 454 

Title  XXXI. — Of  Deposit  and  Sequestration 456 

Chapter  1. — Of  the  deposit  properly  so-called 456 

Chapter  2. — Of  the  necessary  deposit - 460 

Paragraph  1 460 

Paragraph  2 460 

Chapter  3. — Of  sequestration ,. 461 

Title  XXXII. — Of  Aleatory  Contracts 463 

Chapter  1 . — Of  gambling  and  betting ...... 463 

Chapter  2. — Of  the  constitution  of  a  life  annuity 463 

Title  XXXIII.— Of  Quasi  Contracts 466 

Chapter  1 . — Of  negotiorum  gestio  or  the  management  of  another's 

affairs 466 

Chapter  2. — Of  the  payment  of  what  is  not  due 468 

Chapter  3. — Of  the  quasi  contract  of  community 469 

Title  XXXIV. — Common  Liability  for  Offences  and  Faults.  . .  473 


DECREE  No.  4  OF   1903. 

(Of  November  4.) 

On  the  Provisional  Organization  of  the  Republic. 
The  Junta  of  the  Provisional  Government  of  the  Republic  of  Panama 

Decrees: 

First  and  last  article. — There  shall   be  in  force  in  the    Republic  of 
Panama  the  laws  which  have  been  in  force  up  to  the  present,  with  the 
modifications  and  alterations  required  by  the  political  change  effected, 
and  with  those  which  the  Junta  may  direct  in  subsequent  decrees. 
Let  it  be  published. 
Given  in  Panama,  November  4,  1903. 

J.  A*ARANGO. 
FEDERICO  BOYD. 
TOMAS  ARIAS. 


HISTORICAL   INTRODUCTION. 

The  history  of  the  Colombian  law  may  be  divided  into  four  periods. 

The  first  period  covers  the  colonial  period,  that  is  to  say,  the  time 
when  the  present  Republic  of  Colombia  formed  part  of  Spain. 

With  regard  to  this  period,  we  will  confine  ourselves  to  an  indication 
of  the  most  important  general  laws,  without  touching  on  such  laws  as 
the  Code  of  Tolosa,  that  of  Alaric,  the  Fuero  Juzgo,  the  Setenario,  the 
Esp^culo,  the  Fuero  Real,  the  Ordenanzas  de  las  Taruferias,  the  laws  of 
the  Estilo,  those  of  the  Fuero  of  Sepiilveda,  those  of  the  Ordenamiento 
of  Alcala,  those  of  Toro  and  the  Fueros  (special  provisions  for  provinces, 
municipalities,  and  even  for  certain  classes  of  persons) .  Among  the 
Spanish  laws  of  a  general  character  of  greater  importance  are  included, 
the  Seven  Partidas,  the  Nueva  Recopilaci6n,  the  Novisima  Recopila- 
ci6n  and  the  Recopilacion  de  Indias,  which  were  the  Codes  specially 
applicable  in  the  Colony,  and  were  continued  thereafter  for  some  years. 

The  Seven  Partidas  comprise  the  most  complete  collection  of  laws 
of  their  time,  in  the  opinion  of  distinguished  jurists.  It  has  been  impos- 
sible to  ascertain  who  their  author  was,  but  there  is  no  reason  to  deny 
that  they  may  have  been  the  work  of  Alfonso  X,  King  of  Castille  and  of 
Leon,  called  the  Wise.  Originally  they  were  known  as  the  Libro  de  las 
Leyes  or  Fuero  de  las  leyes.  They  were  first  called  Partidas  in  the 
beginning  of  the  fourteenth  century  by  reason  of  being  divided  into 
seven  parts.  They  were  begun  on  June  23,  1256,  and  concluded  appar- 
ently in  1263  or  1265,  in  Seville.  They  were  not  given  any  legal  force 
until  1348,  during  the  reign  of  Alfonso  XI,  when  some  changes  were 
made  therein.  The  first  rule  governing  legal  precedence  was  then  estab- 
lished, viz:  1.  The  laws  of  the  Ordenamiento;  2.  The  Fuero  Real  and 
the  municipal  Fueros;  and  3.  The  Laws  of  the  Partidas. 

The  Nueva  Recopilaci6n  was  published  in  1567  during  the  reign  of 
Philip  II.  It  was  begun  by  Don  Pedro  Lopez  de  Alcocer  and  continued 
by  Doctors  Guevara,  Escudero  and  Arrieta,  the  last  named  concluding 
it,  and  was  revised  by  Licentiate  Atienza. 

The  Novisima  Recopilacion,  the  plan  of  which  was  due  to  Don  Juan 
de  la  Reguera  Valdelomar,  was  concluded  in  1804  and  printed  in  1805, 
during  the  reign  of  Carlos  IV.     It  consists  of  twelve  books. 

The  Recopilacion  de  Indias,  while  earlier  than  the  Novisima  Recopi- 
laci6n  is  mentioned  after  the  latter,  because  it  was  specially  destined 
to  America. 

The  first  to  order  a  recopilation  of  the  laws  and  royal  provisions  which 
had  been  issued  for  the  good  government  of  the  Indies,  was  Philip  II, 
in  1570;  but  it  was  not  carried  out  until  1680,  under  the  reign  of  Carlos 


II,  who  put  it  in  force.     The  full  title  is  Recopilaci6n  de  leyes  de  los 
Reinos  de  las  Indias.     It  consists  of  nine  books. 

The  second  period  comprises  the  first  period  of  the  central  Republic. 
The  Spanish  law  was  tacitly  reformed  in  so  far  as  it  was  opposed  to 
the  equality  of  all  citizens  in  the  eyes  of  the  law,  which  was  the  essential 
basis  of  the  new  institutions,  and  in  so  far  as  it  conflicted  with  the  prin- 
ciples which  the  latter  comprised  at  the  time  independence  was  pro- 
claimed from  the  mother  country,  on  July  20,  18 10. 

The  Spanish  legislation  was  subsequently  expressly  amended  by 
means  of  laws. 

The  Constitution  of  1 821  says  in  its  article  188:  "  All  laws  heretofore 
in  force  on  matters  and  points  which  are  neither  directly  nor  indirectly 
opposed  to  this  Constitution  nor  to  the  decrees  and  laws  which  Congress 
may  enact,  are  declared  in  force  and  effect." 

The  law  of  civil  procedure  of  May  13,  1825,  states,  article  1:  "The 
order  in  which  the  laws  are  to  be  observed  in  all  the  Tribunals  and 
Courts  of  the  Republic,  civil,  ecclesiastical  and  military,  in  civil  as  well 
as  criminal  matters,  is  the  following:  1.  Those  decreed  or  which  may 
hereafte r  be  decreed  by  the  Legislative  Power;  2.  The  pragmatics,  cedu- 
las,  orders,  decrees  and  ordinances  of  the  Spanish  Government  sanc- 
tioned to  March  18,  1808,  which  were  observed  under  the  same  govern- 
ment in  the  territory  which  the  Republic  comprises;  3.  The  Laws  of 
the  Recopilacicm  de  Indias;  4.  Those  of  the  Nueva  Recopilaci6n  of 
Castilla;  and  5.  Those  of  the  Siete  Partidas." 

It  is  to  be  noted  that  neither  the  article  cited  nor  the  laws  of  May  14, 
1834;  June  29,  1858,  "organizing  the  Judiciary  of  the  Confederation"; 
of  May  16,  1865  (Law  42)  and  of  June  7,  1872  (Law  57b),  which  estab- 
lished the  legal  precedence,  preserving  the  order  of  the  law  of  May  13, 
1825,  with  respect  to  the  Spanish  laws,  included  the  Novisima  Recopi- 
lacion  among  those  which  were  to  be  declared  in  force  in  the  country. 
Nevertheless,  the  Novisima  Recopilaci6n  was  in  force,  as  it  had  been 
enacted  before  March  18,  1808,  and  as  the  Spanish  laws  enacted 
before  that  time  were  declared  in  force  in  the  Republic  as  we  have  seen. 
During  this  second  period,  two  collections  of  laws  were  formed,  called 
' ' Recopilaci6n  Granadina"  and  "Appendix  to  the  Recopilaci6n  Grana- 
dina." 

The  Recopilacion  Granadina. — By  a  law  of  May  14,  1843,  it  was  pro- 
vided that  the  Executive  Power  should  prepare  and  publish  a  recopila- 
tion  of  the  laws  and  decrees  mentioned  in  the  law,  which  should  be  con- 
sidered, therefore,  as  the  only  ones  in  force  up  to  that  date  of  those 
enacted  by  the  Republic. 

As  the  provisions  of  said  law  had  not  been  complied  with  until  1 844, 
on  June  12  of  said  year  an  amendment  was  added  to  include  in  the 
recopilation  the  laws  of  1844,  and  to  exclude  some  others  which  had 
been  mentioned  in  the  original  law. 


Hence  it  is  that  the  laws  enacted  by  the  Congress  of  the  Republic 
from  182 1  to  1844  inclusive,  compose  the  work  entitled:  " Recopilaci6n 
de  las  Leyes  de  la  Nueva  Granada,"  known  commonly  and  even  offi- 
cially under  the  name  of  Granadian  Recopilation.  This  work  was  com- 
piled and  published  in  1 845  by  Don  Lino  de  Pombo  by  virtue  of  a  com- 
mission from  the  Executive  Power.  It  comprises  only  the  legal  provis- 
ions in  force  in  1844. 

This  Recopilation  is  divided  into  seven  treaties,  subdivided  into  parts, 
and  the  latter  into  laws.  It  is  preceded  by  some  "Preliminaries" 
which  contain  the  fundamental  constitutional  law  of  1834,  the  Consti- 
tution of  1843,  the  law  for  the  publication  and  execution  of  the  latter, 
and  the  two  laws  providing  for  the  work. 

Appendix  to  the  Granadian  Recopilation. — The  laws  of  1845  to  1850, 
inclusive,  are  collected  in  a  work  entitled  "Apendice  a  la  Recopilaci6n 
de  las  leyes  de  la  Nueva  Granada,"  known  under  the  name  of  Appendix 
to  the  Granadian  Recopilation.  Said  work  was  ordered,  compiled  and 
published  in  1850,  by  Don  Jose  A.  de  Plaza,  under  direction  of  the 
National  Executive  Power.  The  laws  of  1845  to  1849,  inclusive,  are 
subdivided  in  the  same  manner  as  in  the  Granadian  Recopilation,  that 
is,  into  seven  treaties,  subdivided  into  parts,  which  comprise  the  laws 
on  each  subject.  The  laws  enacted  during  1850,  appear  in  the  last  part 
of  the  Appendix,  in  the  order  in  which  they  were  enacted. 

During  the  second  period  of  Colombian  law,  many  provisions  were 
enacted  which  had  fof  purpose  the  harmonizing  of  the  form  of  government 
with  the  civil  law.  By  the  Constitution  of  1821,  "mayorazgos"  and 
"vinculaciones,"  had  been  prohibited.  So  that  since  that  time  it  was 
established  that  no  property  could  be  inalienable.  This  was  followed 
by  laws  on  marriage,  which  preserved  the  religious  marriage  until  1853, 
when  for  the  first  time  civil  marriage  was  established  and  divorce  was 
permitted  as  a  dissolution  of  the  matrimonial  bonds.  In  1856,  divorce 
was  abolished  and  has  never  again  prevailed  in  the  Republic,  excepting 
as  a  separation  of  the  spouses,  and  religious  marriage  was  again  per- 
mitted without  excluding  civil  marriage,  with  the  changes  which  we  will 
indicate  below.  Laws  also  followed  regarding  the  granting  of  letters 
patent  for  inventions,  publication  of  literary  works  and  establishment 
of  industries;  the  discovery  of  treasure,  succession  of  foreigners,  rent 
charges  and  pious  foundations;  interest  which  was  declared  subject  to 
agreement  in  1835 ;  notaries  and  registration  of  property,  etc. 

The  third  period  comprises  the  Federation.  Although  the  Federa- 
tion was  not  established  constitutionally  until  1858,  as  the  Constitution 
of  1853  opened  the  doors  to  the  federal  system,  since  it  recognized  muni- 
cipal autonomy  and  detailed  the  matters  which  would  come  under  the 
exclusive  jurisdiction  of  the  General  Government,  the  creation  of  sover- 
eign Federal  States  was  commenced  in  1855.     The  first  one  to  be  created 


was  Panama.  Then  followed  Antioquia  in  1856,  and  Santander,  Boli- 
var, Boyaca,  Cauca,  Cundinamarca  and  Magdalena  in  1857.  General 
Mosquera,  the  leader  of  the  revolution  in  i860,  created  in  that  year  the 
sovereign  State  of  Tolima,  composed  of  some  provinces  of  the  State  of 
Cundinamarca. 

The  nine  States  mentioned  acquired  at  the  time  of  their  creation,  the 
power  to  legislate  in  matters  of  public,  domestic  and  private  law,  that  is, 
in  constitutional,  administrative  and  penal  matters;  in  civil,  commer- 
cial and  matters  of  procedure ;  but  with  the  obligation  of  respecting  the 
individual  or  social  guaranties  recognized  in  the  national  Constitution, 
and  also  matters  under  the  exclusive  jurisdiction  of  the  Nation,  such  as 
foreign  commerce,  coasting  trade,  the  coining  of  money,  the  legislation 
and  procedure  in  cases  of  prizes,  reprisals,  piracy  and  other  crimes,  and 
in  general  regarding  acts  occurring  on  the  high  seas,  and  the  civil  and 
penal  legislation  in  cases  of  violation  of  International  Law.  The  Fed- 
eral Government  enjoyed  the  exclusive  representation  of  the  Republic 
abroad,  and  as  it  directly  administered  certain  Territories,  it  had  its 
private  and  public  law  for  application  thereto  particularly. 

Hence  it  is  that  during  the  Federation  there  were  in  the  country  ten 
distinct  bodies  of  laws ;  those  of  the  nine  States,  and  that  of  the  General 
Government. 

Speaking  specially  of  the  Civil  Law,  it  is  to  be  noted  that  first  the  States, 
and  then  the  Republic,  accepted  with  some  modifications  the  Civil  Code 
of  Chile,  the  work  principally,  of  Don  Andres  Bello,  and  which  is  based 
not  only  on  the  French  Civil  Code,  but  also  on  other  bodies  of  laws,  such 
as  the  old  Spanish  law. 

The  State  of  Cundinamarca  adopted  the  Chilian  Code  in  1859;  in  the 
same  year  it  was  also  adopted  by  the  State  of  Cauca;  in  i860,  by  Pan- 
ama; the  State  of  Boyaca,  adopted  the  Code  of  Cundinamarca  in  1864. 
Finally  all  the  other  States  replaced  the  old  Spanish  laws  by  the  Code  of 
Chile,  with  the  modifications  they  thought  proper,  which,  as  a  general 
rule,  were  insignificant. 

The  Republic  was  the  last  to  adopt  this  Code,  as  it  was  not  until  1873 
that  it  took  the  place  of  the  Spanish  laws  in  civil  matters  under  the  juris- 
diction of  the  General  Government.  When  adopted,  one  of  the  princi- 
pal amendments  was  the  establishment  of  civil  marriage  as  the  only  one 
legally  recognized. 

Fourth  Period. — The  fourth  period  comprises  the  present  centralized 
form  of  government,  which  was  a  consequence  of  the  war  of  1885,  caus- 
ing the  extinction  of  the  former  sovereign  States  with  their  Constitu- 
tions and  Laws.  Thus,  after  many  years,  the  Nation  adopted  a  central- 
ized form  of  government  similar  to  that  which  existed  from  1821  to 
1853,  and  the  ten  bodies  of  laws  were  reduced  to  one. 
1    Before  the  enactment  of  the  Civil  Code  which  was  to  be  in  force  in  the 


Republic,  the  laws  of  the  State  were  continued  in  force  and  some  rules 
thereon  were  enacted. 

The  Constitution  of  August  4,  1886,  provided  (art.  11)  that  foreigners 
should  enjoy  in  Colombia  the  same  rights  as  were  granted  to  Colombians 
by  the  laws  of  the  Nation  of  the  foreigner,  unless  otherwise  provided  in 
public  treaties.  This  principle  of  reciprocity  replaced  the  former  prin- 
ciple which  made  no  difference  between  the  native  and  the  foreigner 
with  regard  to  the  acquisition  and  enjoyment  of  civil  rights. 

Article  52  of  the  same  Constitution  incorporated  in  the  Civil  Code,  as 
a  preliminary  title,  the  provisions  of  Title  III  of  said  Constitution,  on 
civil  rights  and  social  guaranties. 

Finally,  the  Civil  Code  has  been  amended  by  a  number  of  laws  by  the 
Legislative  Power  of  Colombia,  which  are  included  in  this  translation. 

On  November  4,  1903,  the  Department  of  Panama  declared  its  inde- 
pendence from  the  Republic  of  Colombia. 

A  "Junta"  of  the  Provisional  Government  of  the  Republic  was  estab- 
lished, composed  of  three  members,  who  had  full  administrative  and 
legislative  powers,  until  the  adoption  of  a  Constitution. 

This  Junta,  by  Decree  No.  4,  of  November  4,  1903,  provided  "that  the 
laws  in  force  heretofore  shall  continue  in  force  in  the  Republic  of  Panama, 
with  such  modifications  and  changes  made  necessary  by  the  political 
change  effected  and  which  the  Junta  may  prescribe  in  subsequent 
decrees."  ■ 

By  a  decree  of  November  21,  1903,  two  commissions  of  lawyers  were 
appointed,  under  the  chairmanship  of  the  Minister  of  Justice,  one  for  the 
purpose  of  drafting  projects  for  a  Civil  and  Judicial  Code,  and  the  other, 
for  Commercial,  Mining  and  Penal  Codes.  Although  this  decree  pro- 
vided that  said  Codes  should  be  prepared  by  January  15,  1904,  the 
magnitude  of  the  work  was  such  that  it  has  not  as  yet  been  completed. 


LIST    OF   WORKS    CONSULTED    IN   TRANSLATING 
THE  CIVIL  CODE. 


Estudio  sobre  el  Derecho  Civil  Colombiano,  by  Fernando  Velez, 
Medellin,  1898. 

C6digo  Civil  Nacional  (de  Colombia)  concordado  y  leyes  adicionales 
Concordadas  y  comentadas,  por  Manuel  J.  Angarita,  Bogota,  1888. 

Code  of  Practice  of  Louisiana,  with  annotations  of  Henry  L.  Garland, 
Jr.,  Esq.,  Compiled  and  edited  by  Solomon  Wolf,  New  Orleans,  1901. 

Revised  Civil  Code  of  Louisiana,  with  annotations,  etc.,  by  Edwin  T. 
Merrick,  New  Orleans,  1900. 

Diccionario  de  la  Administration  espanola,  por  Don  Marcelo  Martinez 
Alcubilla,  Madrid,  189 2- 1902. 

Jurisprudencia  Colombiana,  extractada  y  concordada  por  el  Relator 
de  la  Corte  Suprema,  por  el  Dr.  Antonio  Jose  Uribe,  Official  edition, 
Bogota,  1900. 

Prontuario  sobre  asuntos  administrativos  y  judiciales,  por  Bonifacio 
Velez,  Medellin,  1893. 

Diccionario  razonado  de  legislation  y  jurisprudencia,  by  Joaquin 
Escriche,  Paris  and  Mexico,  1888. 

A  Dictionary  of  Law,  by  Henry  Campbell  Black,  M.  A.,  St.  Paul, 
Minn.,  1891. 


IO 


EXPLANATORY  NOTE. 


In  the  following  translation  of  the  Colombian  Civil  Code  and  the 
amendatory  laws,  the  translator  is  specially  indebted  to  the  edition  of 
the  same  annotated  by  Manuel  J.  Angarita,  published  in  Bogota,  in 
1888. 

At  the  end  of  each  article  of  the  Code,  with  few  exceptions,  there  have 
been  inserted  in  parentheses  the  numbers  of  other  articles  which  bear 
more  or  less  relation  to  the  one  in  question.  When  the  articles  to  which 
reference  is  made  are  of  a  law  other  than  that  in  which  they  appear,  such 
law  is  stated.  For  example:  Following  article  370  of  the  Code  appear 
these  citations:  319,  367,  407.  21  of  law  57  of  1887.  55  and  56  of  law 
153  of  1887.  The  first  three  figures  indicate  the  respective  articles  of 
the  Code,  while  the  others  indicate  those  of  the  laws  mentioned,  which 
are  included  in  this  translation  immediately  after  the  Code. 

As  footnotes  have  been  inserted  in  some  cases  citations  to  identical 
or  similar  provisions  of  the  Louisiana  Civil  Code,  and  attention  has  also 
been  called  to  obvious  errors  in  the  official  printed  text,  or  differences 
from  like  provisions  of  the  Code  of  Chile. 

An  effort  has  been  made  to  secure  as  correct  a  translation  as  possible, 
and  in  some  cases  the  translator  may  be  accused  of  sacrificing  what  may 
be  called  good  English  for  fidelity  to  the  original  text.  He  has  been 
constantly  on  his  guard  against  making  an  interpretation  of  law  instead 
of  a  translation. 

FRANK  L.  JOANNINI. 


II 


NATIONAL  CIVIL  CODE. 


Law  57,  of  April  15,  1887. 

On  the  adoption  of  Codes  and  the  unification  of  the  national  legislation. 

{Arts.  1  to  4.) 

The  National  Legislative  Council  Hereby  Decrees  : 

Article  i.  Ninety  days  after  the  publication  of  this  law  there  shall 
govern  in  the  Republic,  with  the  additions  and  amendments  referred  to 
therein,  the  following  Codes : 

The  Civil  Code  of  the  Nation,  sanctioned  May  26,  1873. 

That  of  Commerce  of  the  former  State  of  Panama,  sanctioned  October 
12,  1869;  and  the  National  Code  on  the  same  subject,  edition  of  1884, 
which  relates  solely  to  maritime  commerce.* 

325  of  law  153  of  1887. 

The  Penal  Code  of  the  former  State  of  Cundinamarca,  sanctioned 
October  16,  1858. 

The  Judicial  Code  of  the  Nation  sanctioned  in  1872,  and  amended  by 
law  76  of  1873,  edition  of  1874. 

The  Fiscal  Code  of  the  Nation  and  the  laws  and  the  decrees  having 
the  force  of  law,  relative  to  the  organization  and  administration  of 
the  national  revenues ;  and 

The  Military  National  Code  and  the  laws  supplementary  to  and 
amendatory  thereof. 

Art.  2.  The  terms  Territory,  Prefect,  Union,  United  States  of  Colom- 
bia, President  of  the  State,  employed  in  the  Civil  Code,  shall  be  under- 
stood as  applying  to  the  new  constitutional  entities  or  officials,  as  the 
case  may  require. 

324  of  Law  153  of  1887. 

Art.  3.  In  the  Code  of  Commerce  of  Panama,  Republic  shall  be  under- 
stood in  the  place  of  the  State  of  Panama,  and  the  references  made  in 
said  Code  to  the  laws  of  said  State,  shall  be  understood  as  made  to  the 
corresponding  provisions  of  the  National  Codes. 

324  of  Law  153  of  1887. 

*  There  is  no  edition  of  the  Code  of  Commerce  of  the  Nation  of  the  year  1884,  but 
there  is  one  of  1874. 


12 


ADDITIONS   AND   AMENDMENTS   TO    THE   CIVIL 

CODE. 


Preliminary  Title. 

Art.  4.  In  accordance  with  Art.  52  of  the  Constitution  of  the  Repub- 
lic, Title  III  (Arts.  19  to  52)  of  said  Constitution  is  declared  to  be  incor- 
porated in  the  Civil  Code. 

Said  Title  III  of  the  Constitution  is  as  follows : 

Title  III. 
Civil  Rights  and  Social  Guaranties. 

Article  19.  The  authorities  of  the  Republic  are  instituted  for  the 
protection  of  all  persons  residing  in  Colombia,  in  their  lives,  honor  and 
property,  and  to  insure  mutual  respect  of  natural  rights  by  provid- 
ing against  and  punishing  crimes. 

See  Arts.  10  and  11  of  the  Const. 

Art.  20.  Private  individuals  are  not  liable  to  the  authorities,  except 
for  a  violation  of  the  Constitution  or  of  the  laws.  Public  officials  are 
also  so  liable  for  the  same  cause  and  for  exceeding  their  powers,  or  for 
omission  in  the  exercise  of  their  functions. 

21 ,  57,  63,  65,  and  51  of  Const. 

Art.  21.  In  the  event  of  a  manifest  violation  of  a  constitutional,  pre- 
cept to  the  detriment  of  some  person,  a  superior  mandate  does  not 
exempt  the  agent  executing  it  from  liability. 

Soldiers  in  active  service  are  exempted  from  this  provision.  With 
regard  to  them,  the  liability  shall  fall  only  upon  the  superior  who  gives 
the  order. 

20  and  168  of  Const. 

Art.  22.  There  shall  be  no  slaves  in  Colombia. 

He  who,  being  a  slave,  shall  set  foot  upon  the  territory  of  the  Republic 
shall  be  free. 

19  of  Const. 

Art.  23.  No  one  shall  be  molested  as  to  his  person  or  family,  nor 
imprisoned  or  confined,  nor  detained,  nor  his  domicile  searched,  except 


13 

by  virtue  of  a  written  order  from  a  competent  authority,  with  the  legal 
formalities  and  for  causes  previously  denned  in  the  laws. 

In  no  case  can  there  be  detention,  imprisonment  or  arrest  for 
debts  or  obligations  of  a  purely  civil  character,  excepting  upon  a  judi- 
cial order  to  prevent  removal  from  the  jurisdiction  of  the  court. 

19,  21,  24,  25,  26,  27,  28,  39,  and  107  of  Const. 

Art.  24.  A  delinquent  seized  in  flagranti,  may  be  arrested  and  taken 
before  the  judge  by  any  person.  If  the  agents  of  the  authority  should 
pursue  him,  and  he  should  seek  refuge  in  his  own  domicile,  they  may 
enter  it  for  the  purpose  of  effecting  the  arrest;  and  if  he  should  seek 
refuge  in  another's  dwelling,  a  request  must  first  be  made  to  the  owner 
or  tenant  thereof. 

23  of  Const. 

Art.  25.  No  one  can  be  forced  in  a  criminal,  correctional  or  police 
matter,  to  testify  against  himself  or  against  his  relatives  within  the 
fourth  civil  degree  of  consanguinity  or  second  of  affinity. 

19  and  23  of  Const. 

Art.  26.  No  one  can  be  tried  except  in  accordance  with  the  laws  in 
existence  prior  to  the  commission  of  the  act  charged,  before  a  court  of 
competent  jurisdiction,  and  with  the  observance  of  all  the  formalities 
appertaining  to  each  trial. 

In  criminal  matters,  the  permissive  or  favorable  law  shall  be  applied 
in  preference  to  the  restrictive  or  unfavorable  law,  even  though  it  be 
one  subsequent  to  the  commission  of  the  act. 

27,  28,  and  31  of  Const.     43-47  of  Law  153  of  1887. 

Art.  27.  The  preceding  provision  is  not  an  obstacle  to  the  punish- 
ment, without  previous  trial,  in  the  cases  and  within  the  precise  terms 
fixed  by  law: 

1.  By  officials  exercising  jurisdiction  or  authority,  who  may  impose 
fines  or  sentence  to  imprisonment  any  person  insulting  them  or  lacking 
in  respect  at  the  time  they  are  discharging  the  functions  of  their  office. 

2.  By  Military  Commanders,  who  may  impose  penalties  incontinenti 
for  the  purpose  of  repressing  insubordination  or  a  military  mutiny,  or 
to  maintain  order  when  before  the  enemy. 

3.  By  captains  of  vessels,  who  have,  when  not  in  port,  the  same  power 
to  repress  crimes  committed  on  board. 

26  and  28  of  Const. 


Art.  28.  Even  in  time  of  war  no  one  can  be  punished  ex  post  facto, 
except  in  accordance  with  the  law,  order  or  decree  by  which  the  act  had 
been  previously  prohibited  and  the  respective  penalty  determined. 

This  provision  does  not  act  as  an  obstacle  to  the  arrest  and  detention, 
even  in  time  of  peace,  by  order  of  the  Government  and  upon  a  report  of 
the  Ministers,  when  there  are  serious  reasons  to  fear  the  disturbance  of 
public  order,  of  persons  against  whom  there  are  grave  indications  that 
they  are  about  to  commit  acts  against  the  public  peace. 

26,  27,  29,  32,  33,  and  34  of  Const.     43  of  law  153  of  1887. 

Art.  29.  The  Legislator  shall  impose  the  capital  penalty  only  to  punisn, 
in  cases  defined  as  more  grave,  the  following  crimes,  when  juridically 
proved:  treason  to  the  country  in  a  foreign  war,  parricide,  murder, 
arson,  assault  in  gangs,  piracy,  and  certain  military  crimes  defined  by 
the  laws  governing  the  army. 

At  no  time  can  the  capital  penalty  be  applied  with  the  exception  ol 
the  cases  provided  for  in  this  article. 

28  and  30  of  Const.     63  of  law  57  of  1887.     216  to  231  of  law  153 
of  1887. 

Art.  30.  There  shall  be  no  penalty  of  death  for  political  crimes. 
The  law  will  define  them. 

Art.  31.  Rights  acquired  under  a  just  title  in  accordance  with  the 
civil  laws  by  natural  or  juridical  persons,  cannot  be  ignored  or  impaired 
by  subsequent  laws. 

When  the  application  of  a  law  enacted  for  reasons  of  public  utility 
should  result  in  a  conflict  of  the  rights  of  private  individuals  with  the 
necessity  recognized  by  said  law,  the  private  interest  must  cede  to  the 
public  interest.  But  the  expropriations  which  it  may  be  necessary 
to  make,  require  full  indemnity  in  accordance  with  the  following  article : 

26,  32  and  33  of  Const.     17  to  49  of  law  153  of  1887. 

Art.  32.  In  time  of  peace,  no  one  can  be  deprived  of  his  property, 
either  in  whole  or  in  part,  except  by  virtue  of  a  sentence  or  compulsory 
process,  or  indemnity,  or  general  taxation,  in  accordance  with  the  laws. 

For  serious  reasons  of  public  utility,  defined  by  the  Legislator,  forci- 
ble alienation  may  take  place  by  means  of  a  judicial  order,  and  indem- 
nity shall  be  paid  for  the  value  of  the  property  before  the  expropriation 
takes  place. 

31,  33,  and  34  of  the  Const.     18,  par.  2  of  law  153  of  1887. 

Art.  33.  In  the  event  of  war,  and  only  for  the  purpose  of  providing 
for  the  re-establishment  of  order,  the  necessity  of  an  expropriation  may 


15 

be  decreed  by  authorities  not  of  the  judiciary  and  without  necessity  of 
prior  indemnity. 

In  the  said  case,  the  immovable  property  can  be  occupied  tempo- 
rarily only,  either  to  meet  the  requirements  of  the  war  or  for  the  purpose 
of  devoting  its  products  thereto,  as  a  pecuniary  penalty  imposed  upon 
its  owners,  in  accordance  with  law. 

The  Nation  shall  always  be  liable  for  the  expropriations  which  the 
Government  may  effect  either  itself  or  through  its  agents. 

28,  31,  32,  and  34  of  Const. 

Art.  34.  A  penalty  of  confiscation  cannot  be  imposed. 

28,  31,  32,  and  33  of  Const. 

Art.  35.  Literary  and  artistic  property  shall  be  protected,  as  trans- 
ferable property,  for  the  lifetime  of  the  author  and  for  eighty  years 
more,  upon  compliance  with  the  formalities  prescribed  by  law. 

The  same  guaranty  is  offered  to  the  owners  of  literary  works  pub- 
lished in  Spanish  speaking  countries,  provided  that  the  respective 
Nation  embody  in  its  legislation  the  principle  of  reciprocity  and  with- 
out the  necessity  of  celebrating  international  conventions  for  the  pur- 
pose. 

19.     Law  32  of  1887. 

Art.  36.  Donations  inter  vivos  or  testamentary  donations  made  in 
accordance  with  the  laws,  for  the  purposes  of  charity  or  public  instruc- 
tion cannot  be  deviated  from  their  purpose  or  have  it  modified  by  the 
Legislator. 

31  and  120,  subdivision  21  of  Const. 

Art.  37.  There  shall  not  be  in  Colombia  real  property  which  cannot 
be  freely  alienated,  nor  unredeemable  obligations.* 

81  of  law  153  of  1887. 

Art.  38.  The  Roman  Catholic  Apostolic  religion  is  that  of  the  Nation ; 
the  public  Powers  shall  protect  it  and  shall  enforce  its  respect  as  an 
essential  element  of  social  order. 

It  shall  be  understood  that  the  Catholic  Church  is  not  nor  shall  it  be 
official,  and  it  shall  preserve  its  independence. 

39,  40,  41,  47,  par.  3,  49,  14,  53,  54,  55,  and  56  of  Const. 

*.Law  2  of  1886  states:  "  First  and  last  article.  In  Colombia  real  property  is  not 
transferable  to  foreign  Governments." 


i6 

Art.  39.  No  one  shall  be  molested  by  reason  of  his  religious  opinions, 
nor  compelled  by  the  authorities  to  profess  beliefs  or  observe  practices 
contrary  to  his  conscience. 

19,  40  and  51. 

Art.  40.  The  exercise  of  all  forms  of  worship  which  are  not  contrary 
to  Christian  morals  or  to  law  is  permitted.  •  • 

*  Acts  contrary  to  Christian  morals  or  subversive  of  public  order,  per- 
formed on  the  occasion  or  under  the  pretext  of  the  exercise  of  a  cult, 
shall  be  subject  to  the  common  law. 

I9>  38>  39>  and  51  of  Const. 

Art.  41.  Public  education  shall  be  organized  and  directed  in  accor- 
dance with  the  Catholic  religion. 

Primary  instruction  supported  by  public  funds,  shall  be  gratuitous 
and  not  obligatory. 

120,  sec.  15,  and  185  of  Const. 

Art.  42.  The  press  is  free  in  time  of  peace;  but  responsible  in  accor- 
dance with  the  laws,  when  it  attacks  the  honor  of  persons,  social  order 
or  public  tranquility. 

No  newspaper  publishing  office  can,  without  the  permission  of  the 
Government,  receive  a  subvention  from  other  Governments  or  from 
foreign  companies. 

Art.  43.  Correspondence  entrusted  to  the  telegraph  or  to  the  mails 
is  inviolable.  Private  letters  and  papers  cannot  be  intercepted  nor 
examined,  except  by  the  authorities,  upon  an  order  from  an  official  of 
competent  jurisdiction,  and  in  the  cases  and  with  the  formalities  estab- 
lished by  law,  and  with  the  sole  purpose  in  view  of  seeking  judicial 
evidence. 

The  circulation  of  printed  matter  through  the  mails  may  be  taxed, 
but  never  prohibited  in  time  of  peace. 

19' and  51  of  Const. 

Art.  44.  Every  person  may  engage  in  any  trade  or  honest  occupation 
without  the  necessity  of  his  belonging  to  the  masters'  or  doctors'  guild 
(gremio  de  maestros  6  doctor es) . 

The  authorities  shall  supervise  the  industries  and  professions  in  what 
relates  to  public  morality,  safety  and  health. 

The  law  may  require  certificates  of  qualification  for  the  exercise  of  the 
medical  professions  and  those  affiliated  thereto. 

54  of  Const. 


i7 

Art.  45.  Any  person  has  a  right  to  submit  respectful  petitions  to  the 
authorities,  either  for  motives  of  general  interest,  or  for  motives  of  pri- 
vate interest,  and  to  obtain  a  prompt  decision. 

Art.  46.  Any  part  of  the  population  may  meet  or  congregate  peace- 
fully. The  authorities  may  disperse  any  meeting  developing  into  a 
noisy  or  tumultuous  one,  or  which  obstructs  the  public  roads. 

48,  par.  2-  of  Const. 

Art.  47.  The  formation  of  public  or  private  companies  or  associa- 
tions not  contrary  to  morals  or  legal  order,  is  permitted. 

Popular  political  assemblies  (juntas)  of  a  permanent  character,  are 
prohibited. 

Religious  associations  must  present  to  the  authorities  the  authoriza- 
tion issued  by  the  respective  ecclesiastical  superior,  in  order  that  they 
may  be  under  the  protection  of  the  laws. 

14,  38,  49,  and  53  of  Const. 

Art.  48.  The  Government  only  may  introduce,  manufacture  and  pos- 
sess arms  and  munitions  of  war. 

No  one  can,  within  a  town,  carry  arms  without  the  permission  of  the 
authorities.  This  permission  cannot  be  extended  to  cases  of  attendance 
at  public  meetings,  elections  or  the  sessions  of  the  Assemblies  or  public 
Corporations,  whether  as  participants  or  spectators. 

46  of  Const. 

Art.  49.  Legal  and  public  corporations  have  the  right  to  be  recog- 
nized as  juridical  persons,  and  by  virtue  thereof  to  execute  civil  acts  and 
enjoy  the  guaranties  assured  by  this  Title,  with  the  general  limitations 
which  the  laws  may  establish,  for  reasons  of  public  utility. 

14,  38,  47,  and  53  of  Const.     24  to  27  of  law  57  of  1887.     80  of 
law  153  of  1887. 

Art.  50.  The  laws  shall  determine  all  that  relates  to  the  civil  status 
of  persons,  and  the  consequent  rights  and  duties. 

1 1  to  27  of  law  57  of  1887.     50  to  81  of  law  153  of  1887. 

Art.  51.  The  laws  shall  determine  the  liability  to  which  public  offi- 
cials are  subject  who  shall  act  in  contravention  of  the  rights  guaranteed 
in  this  Title. 

Art.  52.  The  provisions  of  this  Title  shall  be  'incorporated  in  the 
Civil  Code  as  a  preliminary  Title  and  cannot  be  modified  or  changed 
except  by  an  act  amending  the  Constitution. 

7  of  law  153  of  1887. 


19 


CIVIL  CODE  OF  THE  UNION. 


The  Congress  of  the  United  States  of  Colombia  hereby  decrees: 
PRELIMINARY  TITLE.* 

Chapter  I. 
Object  and  Force  of  this  Code. 

Article  i  .  The  Civil  Code  comprises  the  substantive  legal  provisions 
which  specially  determine  the  rights  of  private  individuals,  by  reason 
of  the  status  of  persons,  their  property,  obligations,  contracts,  and  civil 
actions. 

Art.  2.  All  the  provisions  of  the  character  mentioned  in  the  preceding 
article  which  are  applicable  in  matters  of  the  jurisdiction  of  the  General 
Government  in  accordance  with  the  Constitution,  and  in  the  ordinary 
civil  matters  of  the  inhabitants  of  the  territories  which  the  former 
administers,  are  embodied  in  this  Civil  Code  of  the  Union. 

Art.  3.  This  Code  considered  in  its  entirety  and  in  each  of  the  titles, 
chapters,  and  articles  of  which  it  is  composed,  forms  the  rule  established 
by  the  Colombian  Legislator,  to  which  it  is  a  duty  of  private  individuals 
to  conform  in  their  civil  matters,  which  is  that  which  constitutes  the  law 
or  the  national  civil  law. 

Chapter  II. 

Of  the  Law. 

(Note. — The  figures  at  the  end  of  the  articles  refer  to  the  respective 
articles  of  this  Code,  excepting  when  the  law  to  which  they  belong  is 
mentioned.) 

Art.  4.  Law  is  a  declaration  of  the  sovereign  will  expressed  in  the 
form  prescribed  in  the  national  Constitution.  The  general  character  of 
the  law  is  to  command,  prohibit,  permit  or  punish. 

r 

81,  82  of  the  Const.     98,   101,  16,  123,  85,  103,  512,  1334,  par.  2. 

Art.  5.  But  it  is  not  necessary  that  the  law  which  commands,  pro- 
hibits, or  permits,  contain  or  express  in  itself  the  penalty  or  punish- 
ment incurred  by  its  violation.  The  Penal  Code  defines  the  crimes  and 
affixes  the  penalties  therefor. 

384- 

*  See  preliminary,  part  of  law  153  of  1887. 


20 

Art.  6.  Legal  sanction  is  not  only  the  penalty,  but  also  the  reward ;  it 
is  the  good  or  the  evil  derived  as  a  consequence  of  the  fulfillment  of  its 
mandates  or  the  transgression  of  its  prohibitions. 

In  civil  matters,  acts  executed  against  an  express  prohibition  of  the 
law  are  null,  unless  otherwise  provided  in  said  law.  This  nullity,  as  well 
as  the  validity  and  stability  of  those  which  conform  to  the  law,  consti- 
tute sufficient  penalties  and  rewards,  apart  from  those  stipulated  in  the 
contracts. 

512,614,  123,  124,  125,  827,  828  par.  2,  2370,  par.  3,  15,  16,  1526, 
1950. 

Art.  7.  The  constitutional  sanction  which  the  Executive  Power  ex- 
tends to  the  acts  passed  by  Congress  in  order  to  raise  them  to  the  cate- 
gory of  laws,  is  different  from  the  legal  sanction  of  which  the  preceding 
article  treats. 

81,  85  to  90  of  Const. 

Art.  8.  Custom  has  in  no  case  force  against  the  law.  Disuse  cannot 
be  pleaded  for  its  non-observance,  nor  ajiy  practice,  however  inveterate 
and  general  it  be. 

13,  law  153  of  1887.      1246  par.  2,  1256  par.  3,  162 1  par.  2,  1879 
par.  2,  1998  par.  2,  2002,  2009,  2012,  2044,  2045,  2054. 

Art.  9.  Ignorance  of  the  law  does  not  serve  as  an  excuse. 

Art.  10.*  The  order  in  which  the  National  Codes  are  to  be  observed, 
when  incompatibilities  or  contradictions  occur  between  them,  shall  be 
the  following: 

1.  In  their  respective  specialties:  The  Administrative  Code,  the 
Fiscal  Code,  the  Military  Code,  and  that  of  "Fomento." 

2.  The  substantive  Codes,  viz. :  the  Civil  Code,  the  Code  of  Commerce, 
and  the  Penal  Code. 

3.  The  adjective  Judicial  Code. 

49  of  law  153  of  1887. 

Chapter  III. 

Effects  of  the  Law. 

Art.  1 1 .  The  law  is  obligatory  and  produces  its  effects  from  the  day 
it  designates,  and  in  every  case  after  its  promulgation. 

85,  86,  par.  2,  and  89  of  the  Const. 

*  This  article  has  been  expressly  repealed  by  art  45  of  law  57  of  1887,  and  is  sub- 
stituted by  art.  5  of  said  law. 


21 

Art.  12.  The  promulgation  of  the  law  shall  be  made  by  inserting  it  ii 
the  "Diario  Oncial"  and  sending  it  in  this  form  to  the  States  and  Terri- 
tories. 

In  the  capital  of  the  Union  it  shall  be  understood  to  be  promulgated 
from  the  day  of  the  insertion  of  the  law  in  the  official  periodical ;  in  the 
States  and  Territories,  three  days  in  the  capital  and  fifteen  days  in  the 
districts  or  towns  composing  them,  after  the  receipt  of  said  periodical 
by  the  President  or  Governor  of  the  State,  or  by  the  Prefect  of  the 
respective  Territory,  for  which  purpose  these  officials  shall  cause  their 
Secretary  to  keep  a  special  Register  in  which  to  enter  the  date  of  the 
receipt  of  each  number  of  the  "Diario  Oncial,"  giving  notice  thereof  by 
the  next  mail  to  the  Department  of  the  Interior  and  Foreign  Affairs. 

Art.  13.  Laws  have  no  retroactive  effect.  There  is  no  other  excep- 
tion to  this  rule  but  that  admitted  by  article  24  of  the  National  Consti- 
tution* in  the  event  that  the  subsequent  law,  in  criminal  matters, 
imposes  a  lesser  penalty,  f 

Art.  14.  Laws  which  confine  themselves  to  declaring  the  meaning  of 
other  laws,  shall  be  understood  as  incorporated  in  the  latter;  but  they 
shall  in  no  manner  affect  the  effects  of  judgments  which  may  have  be- 
come final  in  the  intermediate  period. 

Art.  15.  Rights  conferred  by  the  laws  may  be  renounced,  provided 
they  affect  only  the  individual  interest  of  the  person  renouncing  them, 
and  that  the  renunciation  is  not  prohibited. 

6,  par.  2,  198,  424,  1522,  1526,  1673,  1773,  1867,  par.  2,  1950. 

Art.  16.  Laws,  the  observance  of  which  affects  order  and  good 
customs,  cannot  be  derogated  by  private  agreements. 

Art.  17.  Judicial  decisions  have  no  binding  force  except  in  the  causes 
in  which  they  were  rendered.  Consequently,  judges  are  prohibited 
from  prescribing  in  matters  of  their  jurisdiction  the  observance  of  their 
decisions  as  a  general  or  regular  provision  of  law. 

25,  26,  401,  406,  765,  par.  5. 

Art.  18.  The  law  is  binding  both  for  citizens  and  foreigners  residing 
in  Colombia. 

10,  11,  12,  and  13,  par.  2  of  Const.     1053,  1054. 

Art.  19.  Colombians  resident  or  domiciled  in  a  foreign  country,  shall 
continue  subject  to  the  provisions  of  this  Code  and  other  national  laws 
regulating  civil  rights  and  obligations: 

1 .  In  what  relates  to  the  status  of  persons  and  their  capacity  to  exe- 

*  This  refers  to  the  Constitution  of  Rionegro. 

t  This  article  has  been  expressly  repealed  by  art.  49  of  law  153  of  1887. 


22 


cute  certain  acts  which  are  to  be  effective  in  any  of  the  Territories  admin- 
istered by  the  General  Government,  or  in  matters  of  the  jurisdiction  of 
the  Union. 

2.  In  the  obligations  and  rights  arising  out  of  family  relations;  but 
only  with  regard  to  their  spouses  and  relatives  in  the  cases  indicated  in 
the  preceding  paragraph. 

Art.  20.  Property  situated  in  the  Territories  and  that  in  the  States, 
in  the  ownership  of  which  the  Nation  has  an  interest  or  right,  are  subject 
to  the  provisions  of  this  Code,  even  though  the  owners  thereof  be  foreign- 
ers and  reside  outside  of  Colombia. 

This  provision  shall  be  understood  as  without  prejudice  to  the  stipu- 
lations contained  in  contracts  entered  into  in  a  valid  manner  in  a  foreign 
country. 

But  the  effects  of  such  contracts,  in  order  to  be  executed  in  any  Terri- 
tory, or  in  cases  affecting  the  rights  and  interests  of  the  Nation,  shall 
conform  to  this  Code  and  other  civil  laws  of  the  Union. 

Art.  21.  The  form  of  public  instruments  is  determined  by  the  law 
of  the  country  in  which  they  may  have  been  executed.  Their  authen- 
ticity shall  be  proved  in  accordance  with  the  rules  established  in  the 
Judicial  Code  of  the  Union. 

This  form  refers  to  the  external  formalities,  to  the  authenticity,  to  the 
fact  of  having  been  really  executed  and  authorized  by  the  persons  and 
in  the  manner  expressed  in  such  instruments. 

22,  1084,  1085,  1086.     337,  711,  and  876  to  883  of  the  Judicial 
Code,  edition  of  1887. 

Art.  22.  In  the  cases  in  which  the  Codes  or  the  laws  of  the  Union  re- 
quire public  instruments  for  proof  to  be  introduced  in  and  produce  effect 
in  matters  of  the  jurisdiction  of  the  Union,  private  instruments  shall 
have  no  value,  whatever  be  tlieir  force  in  the  country  in  which  they  may 
have  been  executed. 

Art.  23.  The  civil  status  acquired  in  accordance  with  the  law  in  force 
at  the  date  of  its  constitution,  shall  subsist,  even  though  said  law  should 
later  lose  its  forc'e. 

31  of  the  Const,  in  force.     20  and  24  of  law  153  of  1887.     34  of 
law  30  of  1888. 

Art.  24.*  Acts  or  contracts  validly  executed  under  the  protection  of 
the  law  of  any  State,  may  be  proved  by  the  means  which  said  law  estab- 
lishes for  their  justification;  but  the  form  in  which  the  proof  is  to  be 
adduced  shall  be  made  subordinate  to  the  provisions  of  the  Judicial 
Code  of  the  Union,  and  the  binding  force  of  said  acts  and  contracts,  their 

*  Expressly  repealed  by  art.  45  of  law  57  of  1887. 


23 

validity  and  the  preference  of  the  rights  which  they  confer  in  the  cases 
of  succession  or  bankruptcy  proceedings  in  which  the  Union  is  interested, 
or  those  which  occur  in  the  Territories,  shall  be  decided  by  the  applica- 
tion of  the  substantive  laws  of  the  said  Union. 

Chapter  IV. 

Interpretation  of  the  Law*  —  — 

Art.  25.  The  interpretation  made  with  authority  for  the  purpose  of 
fixing  the  meaning  of  an  obscure  law,  in  a  general  manner,  pertains 
solely  to  the  Legislator. 

17. 

Art.  26.  Judges  and  public  officials  in  the  application  of  the  laws  to 
particular  cases  and  in  administrative  matters,  shall  interpret  them  by 
way  of  doctrine,  seeking  their  true  meaning,  as  private  individuals  use 
their  own  judgment  to  accommodate  general  provisions  of  law  to  their 
acts  and  special  interests. 

The  rules  fixed  in  the  following  articles  must  serve  for  the  interpreta- 
tion by  way  of  doctrine. 

Art.  27.  When  the  meaning  of  the  law  is  clear,  its  literal  meaning 
shall  not  be  ignored  under  the  pretext  of  following  its  spirit. 

But,  for  the  interpretation  of  an  obscure  expression  in  the  law,  its  in- 
tention or  spirit  may  be  observed,  as  clearly  manifested  in  itself  or  by  the 
trustworthy  history  of  its  establishment. 

Art.  28.  The  words  of  the  law  shall  be  understood  in  their  natural 
and  obvious  sense,  according  to  the  general  use  of  the  same  words ;  but 
when  the  Legislator  shall  have  defined  them  expressly  for  certain  matters 
their  legal  significance  shall  be  applied  in  such  matters. 

Art.  29.  Technical  words  of  any  science  or  art  shall  be  accepted  in 
the  sense  given  them  by  those  engaged  in  said  science  or  art ;  unless  it 
shall  be  clear  that  they  have  been  given  a  different  meaning. 

69. 

Art.  30.  The  context  of  the  law  shall  serve  to  illustrate  the  meaning 
of  each  of  its  parts,  in  order  that  there  may  be  the  proper  connection 
and  harmony  between  all  of  them. 

Obscure  passages  in  a  law  may  be  illustrated  by  other  laws,  especially 
if  they  relate  to  the  same  matter. 

1 61 8  to  1624. 

*  See  the  first  part  of  law  153  of  1887,  especially  arts.  1  to  14,  inclusive. 


24 

Art.  31.  The  favorable  or  unfavorable  character  of  a  provision  shall 
not  be  taken  into  consideration  to  extend  or  restrict  an  interpretation. 
The  scope  to  be  given  each  law  shall  be  determined  by  its  true  meaning, 
according  to  the  preceding  rules  of  interpretation. 

44  and  45  of  law  153  of  1887: 

Art.  32.  In  cases  in  which  the  foregoing  rules  of  interpretation  can- 
not be  applied,  obscure  or  contradictory  passages  shall  be  interpreted 
so  as  to  best  conform  to  the  general  spirit  of  the  legislation  and  natural 
equity. 

1618  to  1624. 

.  Chapter  V. 

Definition  of  Various  Words  of  Frequent  Use  in  the  Laws. 

Art.  33.  The  words  man,  person,  child,  adult,  and  other  similar  words 
which  in  their  general  sense  are  applied  to  individuals  of  the  human 
species,  without  distinction  as  to  sex,  shall  be  understood  to  include 
both  sexes  in  the  provisions  of  the  laws,  unless  from  the  nature  of  the 
provision  or  the  context  they  are  obviously  limited  to  one  only. 

On  the  other  hand,  the  words  woman,  girl,  widow  and  other  similar 
words,  which  designate  the  feminine  sex,  shall  not  be  applied  to  another 
sex,  unless  the  law  expressly  extends  them  to  the  same. 

Art.  34.  An  infant  or  child  is  one  who  has  not  attained  the  age  of 
seven  years;  impubes,  sl  male  under  the  age  of  fourteen  years  and  a 
female  under  twelve;  an  adult,  he  who  is  no  longer  impubes;  of  age,  he 
who  has  attained  the  age  of  twenty-one;  and  a  minor  or  person  under 
age,  he  who  is  under  said  age. 

The  expressions  of  age,  employed  in  the  laws,  include  minors  who  shall 
have  obtained  their  qualification  as  to  age,  in  all  cases  and  things  in 
which  the  laws  shall  not  have  excepted  them  expressly. 

339,  525,  588,  1329. 

Art.  35.  Relationship  by  consanguinity  is- the  relationship  or  connec- 
tion existing  between  persons  descendant  from  the  same  trunk  or  stock, 
or  who  are  united  by  ties  of  blood. 

37,  41,  47,  48,  50. 

Art.  36.  Relationship  by  consanguinity  is  legitimate  or  illegitimate. 

38,  39- 

Art.  37.  The  degrees  of  consanguinity  between  two  persons  are  reck- 


25 

oned  by  the  number  of  generations.  Thus,  the  grandson  stands  in  the 
second  degree  of  consanguinity  to  the  grandfather,  and  two  first  cousins 
stand  in  the  fourth  degree  of  consanguinity  to  each  other. 

4i,  47,  49- 

Art.  38.  Legitimate  relationship  by  consanguinity  is  that  in  which  all 
the  generations  from  which  it  results  have  been  authorized  by  law; 
such  as  that  existing  between  two  first  cousins,  legitimate  sons  of  two 
brothers,  who  were  also  legitimate  sons  of  the  common  grandfather. 

36. 

Art.  39.  Illegitimate  consanguinity  is  that  in  which  one  or  more  of  t^he 
generations  from  which  it  results  have  not  been  authorized  by  the  law ; 
such  as  that  between  two  first  cousins,  the  legitimate  sons  of  two 
brothers,  one  of  whom  was  the  illegitimate  son  of  the  common  grand- 
father. 

36. 

Art.  40.  The  legitimacy  conferred  upon  the  children  by  a  subsequent 
marriage  of  the  parents,  produces  the  same  civil  effects  as  legitimacy  at 
the  time  of  birth.  Hence,  two  first  cousins,  the  legitimate  sons  of  two 
brothers  who  were  legitimized  by  the  marriage  of  their  parents,  stand 
to  each  other  in  the  fourth  degree  of  transverse  legitimate  consanguinity. 

245- 

Art.  41.  In  relationship  by  consanguinity  there  are  lines  and  degrees. 
By  line  is  understood  the  series  and  order  of  persons  descending  from  a 
common  trunk  or  tree. 

37,  42. 

Art.  42.  The  line  is  divided  into  direct  or  straight,  and  into  collateral 
transverse  or  oblique,  and  the  direct  is  subdivided  into  descending  and 
ascending. 

A  straight  or  direct  line  is  that  formed  by  persons  descending  from 
each  other,  or  comprising  only  generating  persons  and  generated  persons. 

41,  43,  44,  45- 

Art.  43.  When  in  the  direct  line  the  other  members  are  counted 
downwards  from  the  trunk,  it  is  called  descending,  for  example :  father, 
son,  grandson,  great-grandson,  great-great-grandson,  etc. ;  and  when 
it  is  counted  upwards,  it  is  called  ascending,  for  example:  son,  father, 
grandfather,  great-grandfather,  great-great-grandfather,  etc. 

42. 


26 

Art.  44.  A  collateral,  transverse,  or  oblique  line,  is  that  formed  by  per- 
sons who,  although  not  proceeding  from  each  other,  do  descend  from  a 
common  stock,  for  example :  brother  and  sister,  children  of  the  same 
father  or  mother ;  nephew  and  uncle,  proceeding  from  the  same  trunk, 
the  grandfather. 

42. 

Art.  45.  By  a  paternal  line  is  understood  that  which  comprises  rela- 
tives on  the  father's  side;  and  by  maternal  line  that  which  comprises 
the  relatives  on  the  mother's  side. 

35,  41,  42. 

f 

Art.  46.  In  the  transverse  line  the  degrees  are  counted  by  the  num- 
ber of  generations  from  one  of  the  relatives  to  the  common  root,  and 
from  the  latter  to  the  other  relative.  Hence,  two  brothers  stand  in  the 
second  degree ;  the  uncle  and  nephew  in  the  third,  etc. 

37-      . 

Art.  47.  Legitimate  affinity  is  that  subsisting  between  a  person  who 
is  or  has  been  married  and  the  legitimate  consanguineous  relatives  of  his 
or  her  husband  or  wife.  The  line  or  degree  of  legitimate  affinity  of  a 
person  to  a  consanguineous  relative  of  the  husband  or  wife,  is  qualified 
by  the  line  or  degree  of  legitimate  consanguinity  of  said  husband  or  wife 
to  said  consanguineous  relative.  Hence,  a  male  stands  in  the  first 
degree  of  legitimate  affinity  in  the  direct  line  to  the  children  borne  by 
his  wife  by  a  previous  marriage;  and  in  the  second  degree  of  legitimate 
affinity,  in  the  transverse  line,  to  the  legitimate  brothers  or  sisters  of 
his  wife. 

35,  37,  41,  42,  49- 

Art.  48.  Illegitimate  affinity  is  that  subsisting  between  one  of  the  per- 
sons who  have  not  contracted  marriage  and  have  had  carnal  knowledge 
of  each  other,  and  the  legitimate  or  illegitimate  consanguineous  relatives 
of  the  other,  or  between  one  of  the  two  persons  who  are,  or  have  been, 
married  and  the  illegitimate  consanguineous  relatives  of  the  other. 

Art.  49.  In  illegitimate  affinity  the  lines  and  degrees  are  classified  in 
the  same  manner  as  in  legitimate  affinity. 

47- 

Art.  50.  Civil  parentage  is  that  resulting  from  adoption,  by  virtue  of 
which  the  law  considers  that  the  adopter,  his  wife  and  the  adopted, 
stand  to  each  other,  respectively,  in  the  relations  of  father,  of  mother, 


27 

of   son.     This   relationship   does   not   extend    beyond   the   respective 
persons. 

Art.  51.*  Legitimate  children  are  called  those  conceived  during  the 
true  or  putative  marriage  of  their  parents,  producing  civil  effects,  and 
those  legitimized  by  the  marriage  of  the  same,  subsequently  to  the  con- 
ception. 

149,  213,  236,  239,  245,  246.     6  and  20  of  law  57  of  1887.     52, 

par.  2  of  law  153  of  1887. 

* 
Art.  52.  Illegitimate  children  are  natural  or  begotten  in  criminal  and 

punishable  intercourse,  or  simply  illegitimate. 

57.  6,  par.  2,  of  law  57  of  1887.      52  par.  1  of  law  153  of  1887. 

Natural  children  are  called  those  born  out  of  wedlock  of  persons  who 
could  marry  at  the  time  of  the  conception,  which  children  have  secured 
acknowledgment  by  their  father  or  mother,  or  by  both,  granted  in  a  pub- 
lic instrument  or  a  testament. 

7  of  law  57  of  1887.     54  to  58  and  66  of  law  153  of  1887. 

Children  begotten  in  criminal  and  punishable  intercourse  are  adulter- 
ine and  incestuous. 

Ah  adulterine  child  is  that  conceived  in  adultery ;  that  is,  between  two 
persons  of  which  one  at  least  was  married  at  the  time  of  conception 
with  the  other:  unless  such  persons  shall  have  contracted  a  putative 
marriage  which  produces  legal  effects  in  respect  to  them. 

140,  No.  7,  1846,  par.  3. 

An  incestuous  child  for  such  effects  is  that  conceived  between  two 
persons  who  cannot  marry  by  reason  of  the  natural  or  civil  bonds  of 
relationship,  and  by  reason  of  which  the  marriage  would  be  null. 

58,  59,  149,  239,  319,  320,  330,  368.  8,  20,  and  21  of  law  57  of 
1887.  Par.  2  of  this  article  is  expressly  repealed  by  art.  45  of 
law  57  of  1887,  and  substituted  by  Art.  7  of  the  same  law. 

Art.  53.  The  denominations  of  legitimate,  illegitimate  and  natural 
given  to  children,  are  applied  correlatively  to  their  parents. 

Art.  54.  Brothers  may  be  so  on  the  part  of  the  father  and  of  the 
mother,  and  are  then  called  carnal  brothers;  or  only  on  the  part  of  the 
father,  and  are  then  called  paternal  brothers;  or  only  on  the  part  of  the 
mother,  and  are  then  called  maternal  or  uterine  brothers. 

♦This  article  has  been  expressly  repealed  by  art.  45  of  law  57  of  1887,  and  sub- 
stituted by  art.  6  of  said  law. 


28 

Art.  55.  Natural  brothers  to  each  other  are  the  natural  sons  of  one 
and  the  same  father  or  mother,  and  legitimate  sons  shall  bear  a  similar 
relation  to  the  natural  sons  of  the  same  father  or  mother. 

Art.  56.  An  illegitimate  son,  whether  natural  or  a  bastard,  recog- 
nized by  the  father  for  the  sole  purpose  of  permitting  him  to  claim  sup- 
port, is  called  purely  for  support  (puramente  alimentario) ;  and  with  re- 
gard to  the  mother,  the  bastard  who,  not  having  with  regard  to  her  the 
legal  quality  of  a  natural  child,  is  recognized  by  her  for  the  same  purpose. 

Art.  57.  The  natural  or  bastard  son  is  called  simply  illegitimate  with 
regard  to  the  father  when  he  has  not  been  recognized  by  him ;  and  with 
regard  to  the  mother,  the  bastard  whom  she  has  not  recognized  nor 
represented  as  a  son  in  a  public  and  notorious  manner. 

6,  par.  2,  7,  par.  2,  20,  and  21  of  law  57  of  1887.     66  of  law  153 
of  1887. 

Art.  58.  Bastards  are  called  the  offspring  of  criminal  and  punishable 
intercourse. 

52,  pars.  1  and  3. 

Art.  59.  Consanguinity,  in  respect  to  incestuous  children,  comprises 
the  legitimate  and  the  illegitimate. 

36,  52,  par.  5, 

Art.  60.  The  relations  of  parentage  referred  to  in  the  last  part  of 
Article  52,  with  regard  to  incestuous  children,  are  those  of  the  parents 
in  the  direct  line  of  consanguinity,  or  in  the  first  degree  of  the  direct  line 
of  affinity,  or  in  the  second  or  third  transverse  degree  of  consanguinity.* 

52,  par.  5,  59.     8  of  law  57  of  1887. 

Art.  61.  In  the  cases  in  which  the  law  provides  that  the  relatives  be 
heard,  it  shall  be  understood  that  the  following  persons  must  be  heard, 
in  the  order  given : 

1 .  The  legitimate  descendants. 

2.  The  legitimate  ascendants,  in  the  absence  of  legitimate  descendants. 

3.  The  natural  father  and  mother  who  have  voluntarily  recognized 
the  son,  or  the  latter,  in  the  absence  of  legitimate  descendants  or  ascend- 
ants. 

4.  The  adopting  father  and  mother,  or  the  adopted  child,  in  the 
absence  of  the  relatives  mentioned  in  numbers  1,2,  and  3. 

5.  The  collateral  legitimate  relatives  to  the  sixth  degree,  in  the  absence 
of  the  relatives  mentioned  in  numbers  1,  2,  3,  and  4. 

*  This  article  has  been  expressly  repealed  by  art.  45  of  law  57  of  1887,  and  substi- 
tuted by  art.  8  of  law  57  of  1887. 


29 

6.  The  natural  brothers,  in  the  absence  of  the  relatives  mentioned  in 
the  preceding  numbers. 

7.  The  legitimate  relatives  by  affinity  within  the  second  degree,  in  the 
absence  of  the  consanguineous  relatives  above  mentioned. 

If  the  person  be  married,  there  shall  also  be  heard,  in  any  of  the  cases 
of  this  article,  his  or  her  spouse ;  and  if  one  or  more  of  the  persons  to  be 
heard  should  not  be  of  age  or  subject  to  the  authority  of  another,  the 
respective  guardians  shall  be  heard  on  his  or  their  behalf,  or  the  per- 
sons under  whose  power  or  dependency  they  may  be  constituted. 

Art.  62.  The  legal  representatives  of  a  person  are  the  father  or  hus- 
band under  whose  authority  such  person  lives,  his  or  her  tutor  or  curator, 
while  the  legal  representatives  of  juridical  persons  are  those  designated 
in  article  639. 

1637. 

Art.  63.  The  law  distinguishes  three  kinds  of  fault  and  negligence. 

Grave  fault,  grave  negligence,  gross  fault,  is  that  which  consists  in  not 
managing  the  affairs  of  others  with  that  care  which  even  careless  per- 
sons or  of  little  prudence  usually  employ  in  their  own  affairs.  This 
fault  in  civil  matters  is  equivalent  to  fraud  (dolo). 

Light  fault,  ordinary  neglect,  is  the  lack  of  that  diligence  and  care  which 
persons  ordinarily  employ  in  their  own  affairs.  Fault  or  neglect, 
without  any  other  qualification,  signifies  light  fault  or  neglect.  This 
character  of  fault  is  opposed  to  ordinary  or  average  diligence  or  care. 

He  who  must  administer  a  business  matter  as  a  good  father  of  a  family, 
is  liable  for  a  fault  of  this  character. 

Very  light  fault  or  neglect  is  the  lack  of  that  careful  diligence  that  a  man 
of  judgment  employs  in  the  administration  of  his  important  affairs.  A 
fault  of  this  character  is  opposed  to  excessive  diligence  or  care. 

Fraud  (dolo)  consists  in  the  positive  intention  of  inferring  damage  to 
the  property  of  another  or  to  his  person. 

1604,  298. 

Art.  64.  An  unforeseen  event,  or  one  which  it  is  impossible  to  resist, 
such  as  shipwreck,  an  earthquake,  capture  by  the  enemy,  acts  of 
authority  exercised  by  a  public  official,  etc.,  are  called  force  majeure  or 
fortuitous  events. 

1604,  par.  2. 

Art.  65.  Security  (caucion)  signifies  generally  any  obligation  con- 
tracted for  the  security  of  another  obligation  of  one's  own  or  of  another. 
Kinds  of  security  are  bonds,  mortgages,  and  pledges. 

Art.  66.  A  fact  is  said  to  be  presumed  when  it  is  deduced  from  certain 
antecedents  or  known  circumstances. 


30 

If  these  antecedents  or  circumstances  which  give  rise  to  the  presump- 
tion are  determined  by  the  law,  the  presumption  is  called  legal. 

Proof  may  be  offered  in  evidence  of  the  non-existence  of  the  act  legally 
presumed,  even  though  the  antecedents  or  circumstances  from  which 
the  law  infers  it  be  true,  unless  the  law  itself  expressly  rejects  such 
proof,  in  view  of  the  antecedents  or  circumstances. 

If  a  thing,  according  to  the  expression  of  the  law,  is  presumed  de  jure, 
it  shall  be  understood  that  evidence  to  the  contrary  is  inadmissible,  in 
view  of  the  antecedents  or  circumstances. 

1768,  92,  par.  2  980. 

Art.  67.  It  shall  be  understood  that  all  terms  of  days,  months,  and 
years  mentioned  in  the  laws  or  in  the  decrees  of  the  President  of  the 
Union,  of  superior  or  inferior  courts,  must  be  complete;  and,  further- 
more, they  shall  run  to  midnight  of  the  last  day  of  the  term. 

The  first  and  last  day  of  a  term  of  months  or  years  must  have  one  and 
the  same  number  in  the  respective  months.  The  term  of  one  month 
may  be  consequently  of  28,  29,  30,  or  31  days,  and  the  term  of  one  year 
of  365  or  366  days,  as  the  case  may  be. 

If  the  month  in  which  a  period  of  months  or  years  is  to  commence 
should  have  more  days  than  the  month  during  which  the  term  is  to 
terminate,  and  if  the  term  should  run  from  any  of  the  days  in  which  the 
first  of  said  months  exceeds  the  second,  the  last  day  of  the  term  shall  be 
the  last  day  of  said  second  month. 

These  rules  shall  be  applied  to  prescriptions,  qualifications  of  age,  and 
•  in  general  to  any  period  of  time  or  terms  prescribed  in  the  laws  or  in  the 
acts  of  the  national  authorities,  excepting  when  such  laws  or  acts  shall 
otherwise  expressly  provide. 

68,  70,  1551,  1555,  1138. 

Art.  68.  When  it  is  stated  that  an  act  shall  be  performed  in  or  within 
a  certain  term,  it  shall  be  understood  that  it  is  valid  if  performed  before 
midnight  concluding  the  last  day  of  the  term ;  and  when  it  is  required  that 
a  certain  period  of  time  elapse  in  order  that  certain  rights  take  effect  or  ex- 
pire, it  shall  be  understood  that  these  rights  do  not  begin  to  take  effect  or 
expire  until  after  midnight  terminating  the  last  day  of  said  space  of  time. 

67  and  articles  cited. 

Art.  69.  Measures  of  extension,  weight,  weights  and  money,  which 
may  be  mentioned  in  the  laws,  in  the  decrees  of  the  Executive  Power  and 
in  the  decisions  of  the  Supreme  Court  and  of  the  national  courts,  shall 


3i 

always  be  understood  in  accordance  with  the  definitions  of  the  Adminis- 
trative Code  and  the  Fiscal  Code  of  the  Union. 

29. 

Art.  70.  In  the  periods  of  time  which  may  be  fixed  in  the  laws  or  in  the 
decrees  of  the  Executive  Power,  or  of  the  superior  or  inferior  courts,  holi- 
days shall  be  included ;  unless  the  term  fixed  should  be  of  working  days, 
and  so  expressed,  as  in  such  case,  and  when  the  Judicial  Code  does  not 
provide  otherwise,  holidays  shall  not  be  counted. 

67,68,  1551,  1555,  1 138. 

Chapter  6. 
Repeal  of  Laws. 

Art.  7 1 .  The  repeal  of  laws  may  be  express  or  implied. 

It  is  express,  when  the  new  law  expressly  states  that  it  repeals  the  old 
one. 

It  is  implied,  when  the  new  law  contains  provisions  which  cannot  be 
conciliated  with  those  of  the  former  law. 

The  repeal  of  a  law  may  be  total  or  partial. 

Art.  72.  An  implied  repeal  leaves  in  force  in  the  former  law,  all  that 
which  is  not  in  conflict  with  the  provisions  of  the  new  law,  even  though 
relating  to  the  same  matter. 

14  of  law  153  of  1887. 


33 


BOOK   FIRST. 


OF  PERSONS. 

TITLE  I. 

Persons  with  Regard  to  Their  Nationality  and  Domicile. 

Chapter  i. 

Division  of  Persons. 

Art.  73.   Persons  are  natural  or  juristic. 

Juristic  personality  and  the  special  rules  relating  thereto  are  treated  of 
in  the  final  Title  of  this  Book. 

14,  38,  47,  49,  and  53  of  Const.     633  et  seq.  of  said  Title.     24  to  27 
of  law  57  of  1887.     80,  81  of  law  53  of  1887. 

Art.  74.  Persons  are  all  members  of  the  human  species,  whatever  be 
their  age,  sex,  race  or  condition. 

Art.  75.  Persons  are  divided  furthermore  into  domiciled  and  tran- 
sient. 

8  to  12  of  Const. 

Chapter  2. 

Of  Domicile  in  so  far  as  it  depends  on  the  Residence  and  the  Intention  to 

remain  therein. 

Art.  76.  Domicile  consists  in  residence  accompanied  by  the  intention, 
real  or  presumptive,  of  always  remaining  therein. 

66,  78,  79,  80,  82,  83,  84,  86. 

Art.  77.  Civil  domicile  relates  to  a  determined  part  of  a  place  of  the 
Union  or  of  a  Territory. 

78,  79,  81,  83,  84,  85. 

Art.  78.  The  place  where  a  person  has  his  abode,  or  where  he  custo- 
marily exercises  his  profession  or  trade,  determines  his  civil  domicile  or 
residence. 

77,  81,  82,  83,  84,  85. 


34 


Art.  79.  The  intention  of  remaining  permanently  is  not  presumed, 
nor  is  civil  domicile  consequently  acquired  in  a  place,  by  the  mere  fact  of 
a  person  occupying  for  some  time  his  own  or  another's  house  therein,  if 
he  shall  have  his  domestic  home  elsewhere,  or  if  it  shall  appear  from 
other  circumstances  that  the  residence  is  casual,  such  as  that  of  a  trav- 
eler, or  that  of  a  person  engaged  upon  a  temporary  mission,  or  that  of 
one  engaged  in  an  ambulatory  traffic. 

76,  78,  80,  82. 

Art.  80.  On  the  other  hand,  it  is  at  once  presumed  that  there  is  an 
intention  of  remaining  permanently  and  taking  up  a  residence  in  a  place, 
if  a  store,  pharmacy,  factory,  shop,  inn,  school  or  other  durable  estab- 
lishment is  opened  therein,  to  be  managed  in  person ;  also  by  the  act  of 
accepting  in  said  place  a  fixed  employment  such  as  is  generally  granted 
for  a  lengthy  period  of  time ;  and  by  other  similar  circumstances. 

66,  82,  84. 

Art.  8 1 .  Civil  domicile  is  not  changed  by  the  act  of  the  individual  re- 
siding  elsewhere  for  a  long  time,  whether  voluntarily  or  against  his  will, 
provided  he  keeps  his  family  and  his  principal  place  of  business,  in  the 
former  domicile. 

Hence,  if  confined  by  a  judicial  decree  to  a  specific  place,  or  banished 
in  the  same  manner  from  national  territory,  he  shall  retain  the  former 
domicile,  as  long  as  he  shall  keep  his  family  and  his  principal  place  of 
business  there. 

76,  77,  79,  80. 

Art.  82.  The  domicile  is  also  presumed  from  the  declaration  made  to 
the  respective  Prefect  or  Corregidor,  of  the  intention  of  taking  up  a  resi- 
dence in  a  certain  district. 

66,  76,  80. 

Art.  83.  When  there  shall  occur,  with  respect  to  one  and  the  same 
person,  circumstances  in  various  territorial  sections  which  constitute 
civil  domicile,  it  shall  be  understood  that  he  has  it  in  all ;  but  if  things 
are  in  question  which  show  a  special  relation  to  one  of  said  sections 
exclusively,  that  section  alone  shall  be  in  such  cases  the  civil  domicile 
of  the  person. 

'  66,  77,  84,  85,  1645,  1646,  1647. 


35 

Art.  84.  Mere  residence  shall  serve  in  the  stead  of  civil  domicile  with 
regard  to  persons  who  have  no  civil  domicile  elsewhere. 

76,  77,  78. 

Art.  85.  A  special  domicile  may  be  established  in  a  contract,  by  com- 
mon agreement,  for  such  judicial  or  extra-judicial  acts  which  may 
arise  under  such  contract. 

76,  77,  78,  83,  1645,  1646,  1647. 

Art.  86.  The  domicile  of  establishments,  corporations  and  associa- 
tions recognized  by  the  law,  is  the  place  where  their  managing  or  direct- 
ing office  is  situated,  unless  their  by-laws  or  special  laws  should  provide 
otherwise. 

76,  78. 

Chapter  3. 

Of  Domicile  in  so  far  as  it  Depends  on  the  Condition  or  Civil  Status  of 

a  Person. 

Art.  87.  A  married  woman  follows  the  domicile  of  the  husband. 

Art.  88.  He  who  lives  under  paternal  power  follows  the  paternal 
domicile,  and  he  who  is  under  guardianship,  that  of  his  tutor  or  curator. 

Art.  89.  The  domicile  of  a  person  shall  also  be  that  of  his  servants 
and  employees  who  reside  in  the  same  house  with  him ;  without  preju- 
dice to  the  provisions  of  the  two  preceding  articles. 


36 


TITLE  II. 
Of  the  Beginning-  and  End  of  the  Existence  of  Persons. 


Chapter  i. 

i 
Of  the  Beginning  of  the  Existence  of  Persons. 

Art.  90.  The  legal  existence  of  every  person  begins  at  birth,  that  is 
to  say,  when  completely  separated  from  the  mother. 

A  child  dying  in  the  maternal  womb,  or  who  dies  before  being  com- 
pletely separated  from  his  mother,  or  who  should  not  have  survived  the 
separation  even  a  moment,  shall  be  considered  as  never  having  existed. 

Art.  91.  The  law  protects  the  life  of  him  who  is  about  to  be  born.  A 
judge,  consequently,  shall,  at  the  request  of  any  person  or  ex  proprio 
motu,  take  such  measures  as  he  may  deem  advisable  to  protect  the 
existence  of  the  unborn,  whenever  he  shall  believe  that  it  is  endangered 
in  some  manner. 

93- 

Art.  92.  The  period  of  the  conception  is  deduced  from  the  time  of 
the  birth,  according  to  the  following  rule : 

It  is  presumed  de  jure  that  the  conception  has  preceded  the  birth  by 
not  less  than  one  hundred  and  eighty  days,  and  not  more  than  three 
hundred,  counted  backwards,  from  midnight  on  the  day  the  birth  began. 

66  par.  4,  237  par.  2,  214. 

Art.  93.  The  rights  which  would  be  deferred  to  a  child  in  the  maternal 
womb,  if  it  should  be  born  and  live,  shall  be  suspended  until  the  birth  has 
taken  place.  And  if  the  birth  constitutes  a  beginning  of  existence,  the 
newborn  shall  enter  upon  the  enjoyment  of  said  rights,  as  if  he  had 
existed  at  the  time  they  were  deferred.  In  the  case  of  the  second  para- 
graph of  article  90,  these  rights  shall  pass  to  other  persons,  as  if  the 
child  had  never  existed. 

Chapter  2. 

< 
Of  the  End  of  the  Existence  of  Persons. 

Art.  94.*  A  person  terminates  by  natural  death. 

Art.  95.  If  by  reason  of  two  or  more  persons  having  lost  their  lives  at 

*  This  article  has  been  expressly  repealed  by  art.  45  of  law  57  of  1887,  and  substi- 
tuted by  art.  9  of  law  57  of  1887. 


37 

the  same  occurrence,  as  in  a  shipwreck,  fire,  earthquake  (ruina) ,  or  battle, 
or  by  any  other  manner  whatsoever,  it  should  not  be  possible  to  ascer- 
tain the  order  in  which  their  deaths  occurred,  action  shall  be  taken  in 
every  case  as  if  said  persons  had  died  at  the  same  instant  and  none 
of  them  survived  the  others. 

1015. 

Chapter  3. 
Of  the  Presumption  of  Death  by  Disappearance. 

Art.  96.  When  a  person  disappears  from  the  place  of  his  domicile, 
his  whereabouts  being  unknown,  the  disappearance  shall  be  considered 
a  mere  absence,  and  his  interests  shall  be  represented  and  cared  for  by 
his  agents  or  legal  representatives. 

Art.  97.  If  two  years  shall  elapse  without  news  of  the  absentee  hav- 
ing been  received,  he  shall  be  considered  to  have  died,  if  the  following 
conditions  be  also  compiled  with : 

1.  The  presumption  of  death  must  be  declared  by  the  judge  of  the 
last  domicile  which  the  person  who  has  disappeared  may  have  had  in  the 
territory  of  the  Nation,  proof  being  first  produced  that  the  whereabouts 
of  such  person  is  unknown,  that  all  means  possible  have  been  taken  to 
ascertain  it,  and  that  since  the  date  of  the  last  news  of  his  existence  at 
least  two  years  have  elapsed. 

2.  The  declaration  referred  to  in  the  preceding  article  cannot  be  made 
until  the  absentee  shall  have  first  been  cited  by  means  of  edicts  pub- 
lished in  the  official  periodical  of  the  Nation,  three  times  at  least,  more 
than  four  months  being  required  to  elapse  between  each  two  citations. 

3.  The  declaration  may  be  requested  by  any  person  having  an  interest 
therein ;  but  it  cannot  be  made  until  at  least  four  months  have  elapsed 
since  the  last  citation. 

4.  The  counsel  which  shall  be  appointed  for  the  absentee  from  the 
time  the  declaration  is  moved  shall  be  heard  in  order  to  make  such 
declaration,  and  also  in  all  subsequent  judicial  proceedings;  and  the 
judge,  on  motion  of  the  counsel  or  of  any  person  having  an  interest  there- 
in, or  ex  proprio  motu,  may  require  in  addition  to  the  proofs  pre- 
sented of  the  disappearance,  if  he  shall  not  consider  them  satisfactory, 
such  others  as  the  circumstances  may  require. 

561,  564 

5.  All  decisions,  final  as  well  as  interlocutory,  shall  be  published  in  the 
official  periodical. 

6.  The  judge  shall  fix  as  the  presumed  day  of  the  death  the  last  of  the 
first  biennial,  reckoned  from  the  date  of  the  last  news;  and  upon  the 


3? 

expiration  of  two  more  years  from  said  date,  shall  grant  the  provisional 
possession  of  the  property  of  the  absentee. 

7.  Nevertheless,  if  after  a  person  shall  have  received  in  war  a  grave 
injury,  or  the  vessel  upon  which  he  may  have  been  sailing  was  ship- 
wrecked, or  he  shall  have  suffered  any  similar  danger,  nothing  more 
should  have  been  heard  of  him,  and  four  years  shall  have  elapsed  since 
the  event  and  the  evidence  and  citations  prescribed  in  the  preceding 
numbers  have  been  presented  and  made,  the  judge  shall  fix  as  the  pre- 
sumed day  of  death,  that  of  the  battle,  wreck,  or  danger,  or  if  said  day 
be  not  known,  he  shall  take  the  average  between  the  beginning  and  the 
end  of  the  period  when  the  event  could  have  occurred;  and  he  shall 
immediately  grant  absolute  possession  of  the  property  of  the  person 
who  disappeared. 

Art.  98.  The  judge  shall  grant  the  absolute  possession  instead  of 
provisional  possession,  if  after  the  expiration  of  two  years  from  the  pre- 
sumed day  0/  death,  it  be  shown  that  sixty  years  have  elapsed  since 
the  date  of  the  birth  of  the  absentee.  He  may  also  grant  such  posses- 
sion upon  the  expiration  of  fifteen  years  from  the  date  of  the  last  news, 
whatever  the  age  of  the  disappeared  person  would  have  been,  had  he 
lived. 

97,  No.  6,  105. 

Art.  99.  By  virtue  of  the  decree  of  provisional  possession,  the  con- 
jugal partnership  shall  be  dissolved,  if  there  be  any,  with  the  disappeared 
person;  if  the  absentee  shall  have  left  any  will  it  shall  be  opened  and 
published,  and  provisional  possession  shall  be  granted  to  the  presumptive 
heirs. 

If  heirs  should  not  appear,  the  proceedings  shall  be  conducted  in 
accordance  with  the  provisions  for  such  cases  contained  in  Book  3,  Title 
7,  Of  the  Opening  of  the  Succession. 

97,  No.  6,  152,  1820,  No.  2,  1012. 

Art.  100.  By  presumptive  heirs  of  the  disappeared  person  are  under- 
stood those  who  were  testamentary  or  legitimate  heirs  at  the  date  of  the 
presumed  death. 

The  patrimony  to  which  they  are  presumed  to  succeed,  shall  com- 
prise the  property,  rights,  and  actions  of  the  disappeared  person,  as  they 
existed  at  the  time  of  his  presumed  death. 

Art.  10 1.  The  provisional  possessors  shall  before  all  prepare  a  formal 
inventory  of  the  property,  or  shall  revise  and  correct  any  existing  in- 
ventory with  the  same  formalities.  ■ 

468,  471,  etseq.,  575,  102,  103,  104. 


39 

Art.  i 02.  The  provisional  possessors  shall  represent  the  succession  in 
judicial  proceedings  and  defense  against  third  persons. 

101,  578,  579- 

Art.  103.  The  provisional  possessors  may  at  once  sell  a  part  of  the 
movables,  or  all  of  them,  if  the  judge  should  deem  it  advisable,  after 
having  heard  counsel  for  the  absentees. 

The  real  property  of  the  disappeared  person  cannot  be  alienated  or 
mortgaged  before  the  absolute  possession,  except  for  a  necessary  cause 
or  one  of  evident  utility,  so  declared  by  the  judge  after  an  investigation 
and  a  hearing  of  counsel  for  the  absentee. 

The  sale  of  any  part  of  the  property  of  the  disappeared  person  shall 
be  effected  at  public  auction. 

101,  575,  576,  577,  484- 

Art.  104.  Each  of  the  provisional  possessors  shall  furnish  bond  of 
preservation  and  restitution,  and  shall  retain  the  respective  fruits 
and  interests. 

Art.  105.  If  upon  the  expiration  of  four  years  after  the  decree  of  pro- 
visional possession,  the  disappeared  person  should  not  have  appeared,  or 
no  news  should  have  been  received  giving  rise  to  the  distribution  of 
his  property  according  to  the  general  rules,  the  absolute  possession  shall 
be  decreed,  and  the  bonds  shall  be  cancelled. 

By  virtue  of  the  absolute  possession,  the  restitutions  imposed  by 
article  109  cease.* 

If  there  should  not  have  been  any  provisional  possession,  the  succes- 
sion of  the  disappeared  person  shall  be  opened  by  the  decree  of  absolute 
possession,  according  to  the  general  rules. 

97  No.  6,  98,  99,  104,  1012. 

Art.  106.  The  absolute  possession  having  fyeen  decreed,  the  owners 
and  the  cestui  que  trusts  of  property  in  usufruct  or  held  fiduciarily  by  the 
disappeared  person,  the  legatees,  and  in  general  all  those  who  have  rights 
subordinate  to  the  condition  of  death  of  the  disappeared  person,  may 
enforce  the  same  as  in  the  case  of  real  death. 

98,  105,  107,  314,  No.  4. 

Art.  107.  He  who  claims  a  right  for  the  existence  of  which  it  is  to  be 
supposed  that  the  disappeared  person  died  on  the  date  of  the  presumed 
death,  shall  not  be  obliged  to  prove  that  the  disappeared  person  really 

*  The  second  paragraph  of  this  article  has  been  expressly  repealed  by  art.  45  of  law 
57  of  1887,  and  replaced  by  art.  10  of  law  57  of  1887. 


40 

did  die  on  said  date ;  and  until  proof  to  the  contrary  is  presented,  he 
may  make  use  of  his  rights  according  to  the  provisions  of  the  preceding 
articles. 

And,  on  the  contrary,  he  who  claims  a  right  for  the  existence  of  which 
it  is  necessary  that  the  absentee  shall  have  died  before  or  after  said  date, 
is  obliged  to  prove  it ;  and  without  such  proof  he  cannot  prevent  that  the 
right  claimed  pass  to  others,  nor  have  any  remedy  against  them. 

66,  par.  3,  106. 

Art.  108.  The  decree  of  absolute  possession  may  be  revoked  in  favor 
of  the  disappeared  person  if  he  should  reappear,  or  of  his  forced  heirs 
found  during  his  disappearance,  or  of  his  spouse,  by  marriage  contracted 
during  the  said  period. 

579,  109,  pars.  1  and  2. 

Art.  109.  In  the  rescission  of  the  decree  of  absolute  possession,  the 
following  rules  shall  be  observed : 

1 .  The  disappeared  person  may  request  the  rescission  at  any  time  he 
appears,  or  makes  his  existence  known. 

108. 

2.  Other  persons  cannot  request  it  except  within  the  respective  periods 
of  prescription  counted  from  the  date  of  the  real  death. 

108. 

3.  This  benefit  may  be  taken  advantage  of  only  by  persons  who  obtain 
it  by  a  judicial  decision. 

4.  By  virtue  of  this  benefit  the  property  shall  be  recovered  in  the  con- 
dition in  which  it  may  be,  all  alienations,  mortgages  and  other  real  rights 
legally  constituted  therein  subsisting. 

5.  In  every  restitution  the  defendants  shall  be  considered  as  bona  fide 
possessors,  unless  there  be  proof  to  the  contrary. 

6.  The  fact  of  having  known  and  concealed  the  true  death  of  the  dis- 
appeared person,  or  his  existence,  constitutes  bad  faith. 

769. 


4i 

TITLE  III. 
Of  Espousals. 

Art.  i  10.  Espousals  or  betrothals ,  that  is  to  say,  a  promise  of  marriage 
mutually  accepted,  is  a  private  act  which  the  laws  subject  entirely  to 
the  honor  and  conscience  of  the  individual,  and  which  does  not  pro- 
duce any  obligation  whatsoever  in  the  civil  law. 

This  promise  cannot  be  pleaded  either  to  demand  that  the  marriage 
be  carried  out  nor  for  the  recovery  of  damages. 

Art.  in.  Nor  can  the  fine  which  may  have  been  stipulated  by  one 
of  the  betrothed  in  favor  of  the  other  in  the  event  of  the  promise  not 
being  fulfilled  be  demanded. 

But  if  the  fine  shall  have  been  paid,  its  return  cannot  be  demanded. 

1527,  par.  3,  2314. 

Art.  112.  What  has  been  stated  is  without  prejudice  to  the  return  of 
the  things  donated  and  delivered  under  the  condition  of  a  marriage 
which  has  not  taken  place. 

150,  1844,  1845,  1846. 


42 

TITLE  IV. 

Of  Marriage. 

Art.  113.  A  marriage  is  a  formal  contract  by  which  a  man  and  a 
woman  unite  themselves  for  the  purpose  of  living  together,  of  procreat- 
ting  and  mutually  assisting  each  other. 

12  and  19  of  law  57  of  1887.     21  and  50  of  law  153  of  1887. 

Art.  114.*  This  contract  may  be  celebrated  by  a  legally  constituted 
proxy. 

Art.  115.  A  marriage  contract  is  constituted  and  perfected  by  the 
free  and  mutual  consent  of  the  contracting  parties,  expressed  before  the 
proper  official,  in  the  form  and  with  the  formalities  and  requisites  estab- 
lished in  this  Code,  and  shall  not  produce  any  civil  or  political  effects,  if 
such  forms,  formalities  and  requisites  are  not  observed  in  its  celebration. 

126,  135,  136,  137,  138.     12  and  19  of  law  57  of  1887.     21  and  50 
of  law  153  of  1887. 

Art.  116.  A  male  twenty-one  years  of  age  or  over  and  a  female  eigh- 
teen years  of  age  or  over,  may  freely  contract  marriage. 

3H,  No.  3. 

Art.  117.  Persons  under  the  ages  mentioned  cannot  contract  mar- 
riage without  the  express  permission,  in  writing,  of  their  legitimate  or 
natural  parents.  If  either  of  them  should  have  died,  or  is  prevented 
from  granting  this  permission,  the  consent  of  the  other  shall  be  sufficient ; 
and  if  they  should  disagree,  the  will  of  the  father  shall  prevail  in  every 
instance. 

The  consent  of  the  adopting  father  and  mother  is  necessary,  in  the 
terms  of  this  article,  for  the  marriage  of  the  adopted  son,  under  twenty- 
one  years  of  age,  or  the  adopted  daughter,  under  eighteen. 

34,  118,  119,  120,  121,  123,  124,  125,  140  No.  2,  264  par.  3,  310, 
314  No.  2,  339,  340,  341.     53  par.  2,  of  law  153  of  1887. 

Art.  118.  It  shall  be  understood  that  the  father,  the  mother,  or  other 
ascendant  is  absent,  not  only  in  the  event  of  his  or  her  death,  but  in  the 
case  of  insanity  or  dementia,  or  by  reason  of  .absence  from  the  national 

*  This  article  and  art.  139  have  been  expressly  repealed  by  art.  45  of  law  57  of  1887, 
and  are  substituted  by  art.  1 1  of  said  law  57. 


43 

territory,  and  an  early  return  not  being  expected,  or  on  account  of  the 
place  of  residence  being  unknown. 

119,  310,  311. 

Art.  119.  It  shall  also  be  understood  that  a  father  is  absent  who  has 
been  deprived  of  the  paternal  power,  and  a  mother  who  by  her  bad  con- 
duct has  been  disqualified  to  interfere  in  the  education  of  her  children. 

118,  310,  311,  312,  315. 

Art.  120.  In  the  absence  of  said  father,  mother  or  ascendants,  it  shall 
be  necessary  for  a  person  under  age  to  secure  the  consent  of  his  or  her 
general  guardian,  or  in  his  absence,  that  of  a  special  guardian. 

117,  121,  435,  583. 

Art.  121.  Of  the  persons  of  whom  according  to  this  Code  permission 
must  be  requested  to  contract  marriage,  only  the  guardian  who  refuses 
his  consent  is  obliged  to  express  the  cause  therefor. 

1 17,  120,  122. 

Art.  122.  The  reasons  justifying  the  dissent  of  the  guardian  can  be 
the  following  only : 

1 .  The  existence  of  any  legal  impediment. 

2.  The  failure  to  execute  any  of  the  formalities  prescribed  in  Title 
VIII,  Of  second  marriages,  in  a  proper  case. 

3.  Grave  danger  to  the  health  of  the  minor  to  whom  permission  is 
denied,  or  to  the  progeny. 

4.  Licentious  living,  immoderate  passion  for  gambling,  habitual 
drunkenness  of  the  person  whom  the  minor  desires  to  marry. 

5.  The  fact  of  such  person  suffering  the  penalty  of  reclusion. 

6.  The  fact  of  neither  of  the  parties  having  actual  means  for  the 
proper  discharge  of  the  marriage  obligations. 

Art.  123.  The  celebration  of  the  marriage  cannot  be  proceeded  with 
without  the  consent  of  the  person  or  persons  whose  consent  is  necessary 
according  to  the  preceding  articles,  or  without  it  being  shown  that  the 
respective  contracting  party  can  freely  marry. 

116,  117,  120,  264  par.  3. 

Art.  124.  He  who  shall  not  have  reached  the  proper  age  and  shall 
marry  without  the  consent  of  an  ascendant,  when  obliged  to  obtain  it, 
may  be  disinherited  not  only  by  the  person  or  persons  whose  consent 
was  necessary,  but  also  by  all  other  ascendants.  If  any  of  the  latter 
should  die  without  leaving  a  will,  the  descendant  shall  receive  only  one- 


44 

half  the  property  he  would  have  been  entitled  to  in  the  succession  of  the 
deceased. 

116,  117,  123,  125,  1266  No.  4,  1268. 

Art.  125.  The  ascendant,  without  whose  necessary  consent  the 
descendant  may  have  married,  may  for  this  cause  revoke  the  donations 
he  may  have  made  him  before  the  marriage. 

A  marriage  contracted  without  the  necessary  consent  of  the  person  of 
whom  there  is  an  obligation  to  obtain  it,  does  not  cause  a  loss  of  the 
right  to  support. 

116,  117,  123,  124,  1268  par.  2,  1036. 

Art.  126.  The  marriage  shall  be  celebrated  before  the  judge  of  the 
district  of  the  residence  of  the  woman,  in  the  presence  and  with  authority 
of  two  competent  witnesses,  previously  sworn. 

115,  135,  127.     12  and  19  of  law  57  of  1887.     21  and  50  of  law 

153  of  1887. 

Art.  127.  The  following  cannot  be  witnesses  to  be  present  at  and 
authorize  a  marriage. 

1.  Women. 

2.  Persons  under  eighteen  years  of  age. 

3.  Persons  interdicted  by  reason  of  insanity. 

4.  All  those  actually  deprived  of  reason. 

5.  The  blind. 

6.  The  deaf. 

7.  The  dumb. 

8.  Those  sentenced  to  the  penalty  of  reclusion  for  more  than  four 
years,  and  in  general  those  who  by  an  executed  sentence  should  be  dis- 
qualified to  be  witnesses. 

9.  Foreigners  not  domiciled  in  the  Republic. 

10.  Persons  who  do  not  understand  the  language  of  the  contracting 
parties. 

126,  1068,  2587. 

Art.  128.  Those  who  shall  desire  to  contract  marriage,  shall  apply 
to  the  judge  of  competent  jurisdiction,  verbally  or  in  writing,  stating 
their  intention.  At  this  act  or  in  the  respective  communication,  they 
shall  state  the  names  of  their  parents  or  guardians,  as  the  case  may  be, 
and  those  of  the  witnesses  who  are  to  testify  as  to  the  qualifications 


45 

necessary  in  the  contracting  parties  to  be  able  to  join  in  marriage,  it 
being  necessary  in  every  case  to  indicate  the  residence  of  such  persons. 

115,  126,  135.     12  and  19  of  law  57  of  1887.     21  and  50  of  law 
153  of  1887. 

Art.  129.  The  judge  shall  immediately  proceed,  ex  proprio  motu, 
to  take  all  the  steps  necessary  to  obtain  the  permission  referred  to  in 
article  1 1 7  of  this  Code,  if  necessary,  and  to  take  the  depositions  of  the 
witnesses  indicated  by  the  petitioners. 

115,  126,  128,  135. 

Art.  130.  The  judge  shall  question  the  witnesses,  with  the  legal  for- 
malities, and  shall  examine  them  as  to  the  qualifications  required  in  the 
contracting  parties  to  join  in  marriage,  for  which  purpose  he  shall  read 
article  140  of  this  Code  to  them;  he  shall  also  examine  them  on  any 
other  matters  which  he  may  believe  necessary  to  form  a  proper  judg- 
ment. 

174. 

In  view  of  the  statements  of  the  witnesses,  he  shall  cause  an  edict  to 
be  posted  for  fifteen  days,  on  the  door  of  his  office,  announcing  therein 
the  petition  made,  the  names  and  surnames  of  the  contracting  parties, 
and  the  place  of  their  birth,  in  order  that  within  the  period  of  the  edict 
he  who  believes  he  has  a  right  to  prevent  the  marriage  may  appear,  or 
in  order  that  the  impediments  existing  between  the  contracting  parties 
may  be  announced  by  the  person  having  a  right  to  do  so. 

128,  129,  131,  140. 

Art.  131.  If  the  contracting  parties  are  residents  of  different  parochial 
districts,  or  if  either  of  them  should  not  have  six  months'  residence  in  the 
district  in  which  he  may  be,  the  judge  of  the  residence  of  the  woman 
shall  request  the  judge  of  the  residence  of  the  male  to  post  the  edict 
referred  to  in  the  preceding  article,  and  upon  the  conclusion  of  the  term, 
that  it  be  sent  him  with  a  memorandum  thereon  that  it  was  posted  for 
fifteen  consecutive  days.  Until  this  shall  have  been  done,  no  subse- 
quent proceedings  shall  be  had. 

128,  129,  i30>  134- 

Art.  132.  If  there  should  be  opposition,  and  its  cause  should  be 
capable  of  preventing  the  celebration  of  the  marriage,  the  judge  shall 
order  that  within  the  next  eight  days  the  persons  interested  present  the 


•      46 

evidence  of  the  opposition ;  upon  the  termination  of  this  period,  he  shall  fix 
a  day  for  the  holding  of  the  hearing,  and  after  citing  the  parties,  a  deci- 
sion shall  be  rendered  regarding  the  opposition  within  three  days  after 
the  holding  of  the  hearing. 

117,  120,  123,  140. 

Art.  133.  Decisions  rendered  in  these  proceedings  may  be  appealed 
from  to  the  immediate  superior,  who  shall  proceed  in  these  matters  as  in 
ordinary  suits  of  greater  import ;  from  the  decision  rendered  in  second 
instance,  the  only  remedy  is  that  of  complaint. 

Art.  134.  After  the  proceedings  mentioned  in  article  130  have  been 
had,  and  if  there  should  be  no  opposition,  or  if,  there  having  been  oppo- 
sition, it  has  been  declared  not  well  taken,  a  day  and  hour  shall  be  fixed 
for  the  celebration  of  the  marriage,  which  shall  be  within  the  following 
eight  days ;  this  decision  shall  be  communicated  to  the  parties  interested 
at  once. 

Art.  135.  The  marriage  shall  be  celebrated  by  the  appearance  of  the 
contracting  parties  in  the  office  of  the  judge,  before  him,  his  secretary, 
and  two  witnesses.  The  judge  shall  inquire  of  the  parties  whether  they 
join  in  matrimony  of  their  own  free  will;  he  shall  inform  them  of  the 
nature  of  the  contract  and  of  the  mutual  duties  they  are  about  to  assume 
explaining  to  them  for  the  purpose  articles  152,  153,  176  et  seq.,  of 
this  Code.  Thereupon  a  record  shall  be  made  of  all  that  has  taken  place, 
which  shall  be  signed  by  the  contracting  parties,  the  judge,  the  witnesses 
and  the  secretary;  whereupon  the  marriage  shall  be  declared  to  be 
perfected. 

115,  126,  137,  138. 

Art.  136.  If  either  or  both  of  the  contracting  parties  should  be  in 
imminent  danger  of  death,  and  on  this  account  there  should  not  be  time 
to  take  the  measures  referred  to  in  article  130,  the  celebration  of  the 
marriage  may  be  proceeded  with  without  such  formalities,  provided  the 
contracting  parties  prove  that  they  are  not  included  in  any  of  the  cases 
of  article  140.  But  if  after  the  expiration  of  forty  days,  the  death  feared 
should  not  have  occurred,  the  marriage  shall  be  void,  if  not  revalidated, 
all  legal  formalities  being  observed. 

Art.  137.  The  record  shall  contain,  in  addition,  the  place,  day,  month 
and  year  of  the  celebration  of  the  marriage,  the  names  and  surnames  of 
the  contracting  parties,  those  of  the  judge,  witnesses,  and  secretary. 
After  the  record  has  been  registered,  it  shall  at  once  be  sent  to  the  re- 
spective notary  for  the  purpose  of  filing  in  the  protocol  and  issuing  a 
copy  to  the  persons  interested.     No  fees  shall  be  charged  for  these  acts. 

135,  364. 


47 

Art.  138.  The  consent  of  the  spouses  must  be  pronounced  in  a  per- 
ceptible voice,  without  equivocation,  and  by  the  parties  themselves,  or 
must  be  shown  by  signs  which  do  not  admit  of  doubt. 

Art.  139.*  A  marriage  celebrated  by  proxy  shall  be  valid,  provided 
that  the  names  of  the  spouses  are  very  clearly  expressed,  and  the  power 
is  not  revoked  before  the  celebration  of  marriage. 

The  notary  before  whom  the  revocation  is  made  shall  state  the  pre- 
cise hour  it  takes  place. 

*  This  article  and  art.  1 14  have  been  repealed  expressly  by  art.  45  of  law  57  of  1887, 
and  have  been  substituted  by  art.  1 1  of  said  law  57. 


48 


TITLE  V. 

Of  the  Nullity  of  Marriage  and  its  Effects. 
Art.   140.  A  marriage  is  null  and  void  in  the  following  cases : 

1 .  When  there  has  been  error  regarding  the  persons  of  both  contract- 
ing parties  or  of  one  of  them. 

142,  1512,  1502,  1508. 

2.  When  it  has  been  contracted  between  a  male  under  fourteen  and  a 
woman  under  twelve  years  of  age,  or  when  either  of  the  two  was  respec- 
tively under  said  age. 

ii7,i43- 

3.  When  the  consent  of  either  or  of  both  of  the  contracting  parties 
should  have  been  wanting  in  its  celebration.  The  law  presumes  a  want 
of  consent  in  the  violently  insane,  while  in  a  state  of  insanity,  and  in 
those  suffering  from  loss  of  reason  upon  whom  a  judicial  interdiction 
from  the  management  of  their  property  shall  have  been  imposed.  But 
the  deaf  and  dumb,  if  they  can  clearly  express  their  consent  by  manifest 
signs,  shall  validly  contract  marriage. 

Nos.  5  and  6  of  this  article,  138,  144,  1502  No.  2,  553,  560,  1504. 

4.  When  it  has  not  been  celebrated  before  the  judge  and  the  compe- 
tent witnesses.* 

126,144.     15  of  law  57  of  1887 

5.  When  it  has  been  contracted  through  force  or  fear  sufficient  to 
oblige  one  to  act  without  liberty ;  whether  the  force  be  employed  by  the 
person  desiring  to  contract  marriage  or  by  another  person.  The  force 
or  fear  shall  not  be  a  cause  for  the  nullity  of  the  marriage,  if,  after 
the  force  having  disappeared,  the  marriage  be  ratified  by  express  words, 
or  by  the  mere  cohabitation  of  the  consorts. 

Nos.  3  and  6  of  this  article,  145,   1502  No.  2,  1508,  15 13,  15 14. 

6.  When  there  has  not  been  freedom  in  the  consent  on  the  part  of  the 

*  This  paragraph  has  been  expressly  repealed  by  art.  45  of  law  57  of  1887,  and  sub- 
stituted by  par.  1  of  art.  13  of  said  law  57. 


49 

woman,  on  account  of  her  having  been  violently  abducted,  unless  she 
consents  thereto,  being  beyond  the  power  of  the  abductor. 

Articles  cited,  and  Nos.  3  and  5  of  this  art. 

7.  When  it  shall  have  been  celebrated  between  an  adulterous  woman 
and  her  accomplice,  provided  that  before  the  marriage  the  adultery 
should  have  been  declared  established  in  court. 

52,  par.  4,  146.     15  of  law  57  of  1887. 

8.  If  one  of  the  contracting  parties  has  killed  or  caused  to  be  killed  the 
spouse  with  whom  he  was  united  in  a  former  marriage. 

146.     15  of  law  57  of  1887. 

9.  When  the  contracting  parties  are  in  the  same  ascending  or  descend- 
ing line  or  are  brother  and  sister. 

52,  par.  5,  146.     8  and  15  of  law  57  of  1887. 

10.*  When  it  has  been  contracted  between  the  stepfather  and  the 
stepdaughter,  or  between  the  stepson  and  the  stepmother. 

146.     15  of  law  57  of  1887. 

11.  When  it  has  been  contracted  between  the  adopting  father  and  the 
adopted  daughter,  or  between  the  adopted  son  and  the  adopting  mother, 
or  the  woman  who  was  the  spouse  of  the  adopter. 

146,  269,  275.      15  of  law  57  of  1887. 

1 2.f  When  with  regard  to  the  man  or  the  woman,  or  both,  the  bonds  of 
a  former  marriage  are  still  in  force. 

146,  152.     15  of  law  57  of  1887. 

i3.f  When  celebrated  between  a  woman  under  twenty-one  years  of 
age,  even  though  she  should  have  obtained  qualification  as  to  age,  and 
the  tutor  or  curator  who  may  have  administered  or  is  administering  her 
property,  if  the  account  of  the  administration  had  not  been  approved  by 
the  judge;  and 

146,621.     14  of  law  57  of  1887. 

*  This  paragraph  has  been  expressly  repealed  by  art.  45  of  law  57  of  1887,  and  sub- 
stituted by  No.  2  of  art.  13  of  said  law  57. 

f  Expressly  repealed  by  art.  45  of  law  57  of  1887,  and  substituted  by  art.  14  of 
said  law. 


5Q 

1 4.*  When  it  has  been  contracted  between  the  descendants  of  the 
tutor  or  curator  of  a  minor  and  the  respective  ward;  even  though  the 
ward  should  have  obtained  qualification  as  to  age. 

A  marriage  celebrated  in  contravention  of  the  provisions  of  this  or  of 
the  preceding  paragraph,  shall  subject  the  tutor  or  curator  who  con- 
tracted or  permitted  it  to  the  loss  of  any  remuneration  which  may  be  due 
him  by  reason  of  his  charge,  without  prejudice  to  the  other  penalties 
which  the  laws  may  impose. 

16  and  17  of  law  57  of  1887. 

Art.  i4i.f  The  provisions  of  paragraphs  13  and  14  of  the  preceding 
article  shall  not  apply  if  the  marriage  is  authorized  by  the  ascendant  or 
ascendants  whose  consent  may  be  necessary  to  contract  it. 

Art.  142.  The  nullity  referred  to  in  No.  1  of  art.  140  cannot  be  alleged 
except  by  the  contracting  party  who  suffered  the  error. 

The  annulment  of  the  marriage  cannot  take  place  from  error  if  the 
person  who  suffered  it  should  have  continued  in  cohabitation  after  hav- 
ing known  of  the  error. 

Art.  143.  The  nullity  referred  to  in  No.  2  of  the  said  article,  may  be 
pleaded  by  the  father  or  tutor  of  the  minor  or  minors ;  or  by  the  lattes 
through  a  curator  ad  litem;  but  if  pleaded  after  the  expiration  of  three 
months  from  the  date  the  minors  shall  have  reached  puberty,  or  when 
the  woman,  even  though  under  the  age  of  puberty,  should  have  con- 
ceived, the  annulment  of  the  marriage  cannot  take  place. 

Art.  144.  The  nullity  referred  to  in  Nos.  3  and  No.  4  can  be  pleaded 
only  by  the  contracting  parties  or  by  their  parents  or  guardians. 

Art.  145.  The  nullities  referred  to  in  Nos.  5  and  6  can  be  declared  only 
at  the  petition  of  the  person  who  was  the  victim  of  the  force,  who  was 
caused  the  fear  or  obliged  to  consent. 

There  shall  be  no  reason  for  the  nullity  for  the  causes  mentioned  in 
said  paragraphs,  if  after  the  spouses  shall  have  been  at  liberty,  they  shall 
have  lived  together  for  a  period  of  three  months,  without  complaining. 

Art.  146. J  The  other  nullities  referred  to  in  article  140  are  absolute; 
the  judge  must  declare  them  even  ex  proprio  motu  and  they  cannot 
be  avoided  by  the  ratification  of  the  parties,  nor  by  a  lapse  of  time  less 
than  twenty  years. 

The  nullities  referred  to  in  Nos.  13  and  14  are  not  declared  at  the  in- 

*  Expressly  repealed  by  art.  45  of  law  57  of  1887,  and  substituted  by  art.  14  of  said 
law. 

t  Expressly  repealed  as  these  paragraphs  have  been  by  art.  45  of  law  57  of  1887,  it 
is  evident  that  this  article  is  virtually  and  impliedly  repealed. 

J  This  article  is  expressly  repealed  by  art.  45  of  law  57  of  1887,  and  is  substituted 
by  art.  15  of  said  law. 


5i 

stance  of  the  judge,  and  the  act  may  be  ratified  after  the  expiration  of 
five  years. 

The  nullity  in  case  of  bigamy  does  not  admit  of  ratification  as  long  as 
the  previous  bonds  exist. 

Art.  147.*  With  the  exception  of  the  causes  mentioned  in  article  140, 
there  are  no  others  which  invalidate  a  marriage  contract :  other  faults 
committed  in  its  celebration  shall  subject  the  guilty  parties  to  the  penal- 
ties established  in  the  Penal  Code. 

Art.  148.  Upon  the  annulment  of  a  marriage,  all  the  mutual  rights 
and  obligations  resulting  from  a  marriage  contract  cease  from  the  very 
day  of  such  annulment  between  the  separated  spouses ;  but  should  there 
have  been  bad  faith  on  the  part  of  either  of  the  contracting  parties,  the 
latter  shall  be  obliged  to  indemnify  the  other  for  all  the  losses  occasioned 
him,  estimated  under  oath. 

140,  150,  151,  225  par.  2,  1846.     13  and  17  of  law  57  of  1887.     51 
of  law  153  of  1887. 

Art.  149.  Children  procreated  in  a  marriage  which  is  declared  null, 
are  legitimate,  remain  under  the  power  of  the  father  and  shall  be  sup- 
ported and  educated  at  the  expense  of  the  father  and  the  mother,  for 
which  purpose  they  shall  contribute  such  portion  of  their  property  as 
the  judge  may  designate ;  but  if  the  marriage  shall  have  been  annulled 
through  the  fault  of  one  of  the  spouses,  the  cost  of  support  and  education 
of  the  children  shall  be  defrayed  by  him,  if  he  have  means  therefor,  and 
otherwise,  by  the  one  who  has. 

51,  213,  236,  52  par.  4,  225  par.  2,  228,  229,  230,  160,  161,  205, 
»  253,257,258.     6  of  law  57  of  1887.     52  of  law  153  of  1887. 

Art.  i  50.  The  donations  and  promises  which,  in  consideration  of  the 
marriage,  may  have  been  made  by  the  spouse  to  one  who  married  in 
good  faith,  shall  subsist,  notwithstanding  the  declaration  of  the  nullity 
of  the  marriage. 

;    j         112,  148,  164,  1846,  1 194,  1443. 

Art.  151.  In  the  same  decision  which  contains  the  declaration  of  the 
nullity  of  a  marriage,  the  proper  order  shall  be  made  for  the  trial  and 
prompt  punishment  of  those  guilty,  and  the  rights  pertaining  to  the 
innocent  spouse  and  to  his  or  her  children,  in  the  property  of  the  other 

*  This  article  is  also  expressly  repealed  by  art.  45  of  law  57  of  1887,  and  is  replaced 
by  art.  16  of  said  law. 


52 

spouse,  shall  be  precisely  determined,  as  well  as  the  quota  which  each 
spouse  .must  contribute  to  the  education  and  support  of  the  children, 
and  the  restitution  of  the  property  brought  to  the  marriage ;  such  other 
incidental  issues  as  may  have  been  raised  by  the  parties  shall  also  be 
decided. 

148,  149,  150. 
See  arts.  17,  18,  and  19  of  law  57  of  1887,  and  51  of  law  153  of  1887. 


TITLE  VI. 

Dissolution  of  Marriage. 

Art.  152.  Marriage  is  dissolved  by  the  death  of  one  of  the  spouses. 
1820,  No.  1. 


53 


TITLE  VII. 
Of  Divorce,  its  Causes  and  Effects. 

Paragraph  i. 
Of  Divorce. 


Art.  153.  A  divorce  does  not  dissolve  a  marriage,  but  suspends  the 
common  life  of  the  married. 

152,  155,  156,  178,  225.     20  of  law  57  of  1887. 


Paragraph  2. 
Causes  for  Divorce. 

Art.  154.  The  following  are  grounds  for  divorce: 

1 .  Adultery  on  the  part  of  the  wife. 

2.  Concubinage  on  the  part  of  the  husband. 

3.  Habitual  drunkenness  of  one  of  the  spouses. 

4.  The  absolute  abandonment  on  the  part  of  the  wife  of  the  duties  of 
a  wife  and  mother,  and  the  absolute  abandonment  on  the  part  of  the 
husband  of  the  fulfillment  of  the  duties  of  a  husband  and  father. 

M$.  Cruel  treatment,  assault,  if  the  life  of  the  spouses  is  endangered 
thereby,  or  domestic  peace  and  harmony  are  rendered  impossible. 

Art.  155.  Insanity,  contagious  disease,  and  any  other  similar  mis- 
fortune in  either  of  the  spouses,  does  not  authorize  a  divorce,  but  the 
judge  may,  after  an  investigation,  and  at  the  instance  of  the  other 
spouse,  briefly  and  summarily  suspend  the  obligation  to  cohabit,  but 
the  other  conjugal  obligations  due  the  unfortunate  spouse  shall  never- 
theless subsist. 

176,  178,  179. 

Art.  156.  A  suit  for  divorce  may  be  brought  only  by  the  party  who 
did  not  give  cause  therefor,  and  only  the  spouses  or  their  parents  shall 
be  parties  to  the  suit;  but  the  opinion  of  the  public  prosecutor  shall 
always  be  heard,  on  account  of  the  interest  of  the  children  or  that  of  the 
wife,  in  the  absence  of  succession. 

Art.  157.  At  the  time  of  admitting  the  suit  for  divorce,  or  before,  \\\ 
an  urgent  case,  the  following  measures  shall  be  provisionally  adopted  \,y 
the  judge,  only  while  the  trial  lasts : 

1 .  To  separate  the  spouses  in  everv  case. 


54 

2.  To  place  the  wife  in  the  custody  of  her  parents  or  nearest  relatives, 
and  in  the  absence  or  excuse  of  the  latter,  in  such  house  as  the  judge 
shall  determine. 

227. 

3.  To  place  the  children  under  the  care  of  one  of  the  spouses,  or  of  both, 
or  of  another  person,  the  provisions  of  articles  160  and  161  being 
observed. 

4.  To  fix  the  amount  which  the  husband  must  allow  the  wife  for  her 
dwelling  and  food  and  that  of  the  children  remaining  under  her  power, 
and  for  costs  of  litigation ;  and 

158. 

5.  To  decree,  in  the  event  of  the  woman  being  pregnant  enceinte, 
the  necessary  precautions,  if  the  husband  should  so  request,  to  pre- 
vent a  fictitious  birth,  the  provisions  of  Chapter  2,  Title  X,  Book  1,  of 
this  Code,  being  observed. 

225  et  seq.     20  of  law  57  of  1887. 

Art.  158.  During  the  suit  for  separation,  the  administration  of  the 
property  common  to  the  spouses  shall  continue  under  the  charge  of  the 
husband,  under  the  obligation  prescribed  in  No.  4  of  the  preceding 
article. 

The  judge  may,  on  petition  of  the  wife,  decree  such  provisional  meas- 
ures as  he  may  deem  proper,  in  order  that  the  husband,  as  adminis- 
trator of  the  property  of  the  wife,  may  not  cause  her  any  loss. 

201. 

Art.  159.  A  reconciliation  puts  an  end  to  a  suit  for  divorce,  and 
leaves  without  any  subsequent  effect  the  final  decision  rendered  therein ; 
but  the  spouses  must  inform  the  judge  or  court  taking  cognizance  of 
the  matter,  or  the  judge  of  first  instance,  if  the  suit  is  closed,  of  such 
reconciliation. 

167.     vSee  Art.  18  of  law  57  of  1887. 

Paragraph  3. 
Effects  of  Divorce. 

Art.  160.  Upon  a  decision  decreeing  a  divorce  becoming  final,  the 
children  under  seven  years  of  age,  and  especially  the  girls,  shall  remain 
in  the  custody  of  the  mother. 

149,  161. 


55 

Art.  161.  If  the  divorce  shall  have  been  decreed  on  account  of  any 
of  the  causes  mentioned  in  paragraphs  i  and  4  of  article  154  having 
been  proved,  all  the  children  over  three  years  of  age,  without  distinction 
as  to  sex,  shall  pass  into  the  custody  of  the  innocent  spouse,  the  expenses 
of  support  and  education  of  the  same  being  defrayed  by  both  consorts, 
and  regulated  by  the  judge. 

149,  160.     62,  63  and  64  of  law  153  of  1887. 

Art.  162.  The  property  of  the  wife  shall  be  restored  to  her  and  her 
part  of  the  acquets  and  gains  of  the  conjugal  partnership  shall  be  given 
her,  as  in  the  case  of  a  dissolution  of  the  marriage,  without  prejudice  to 
the  exceptions  which  will  be  set  forth. 

1820  et  seq. 

Art.  163.  If  the  wife  shall  have  given  cause  for  divorce  by  reason  of 
adultery,  she  shall  lose  all  her  right  to  the  acquets  and  gains,  and  the 
husband  shall  have  the  administration  and  the  usufruct  of  her  property, 
excepting  such  as  the  wife  may  administer  as  separate  property  and  that 
which  she  may  acquire  under  any  title  after  the  divorce. 

In  such  case  the  husband  shall  always  give  security,  to  the  satisfac 
tion  of  the  judge,  for  the  value  of  the  property  he  may  administer. 
Such  administration  shall  not  take  place  when  there  has  been  no  succes- 
sion in  the  marriage. 

166,  197,  1776.     4 1 1 ,  subdivision  4. 

Art.  164.  The  innocent  spouse  may  revoke  the  donations  he  or  she 
may  have  made  to  the  guilty  one. 

112,  150,  1846,  1 194,  1443. 

Art.  165.  A  divorced  woman  administers  independently  of  the  hus- 
band the  property  which  she  has  removed  from  his  power,  or  which  she 
shall  acquire  after  the  divorce. 

162,  163,  204. 

Art.  166.  A  husband  who  shall  have  given  cause  for  the  divorce, 
preserves  the  obligation  of  contributing  to  the  suitable  and  proper  sup- 
port of  his  divorced  wife,  and  the  judge  shall  fix  the  amount  and  form 
of  the  alimony,  taking  into  consideration  the  circumstances  of  both. 

163,  411,  subdivision  4. 

Art.  167.  If  the  divorced  couple  shall  become  reconciled,  things,  with 
regard  to  the  conjugal  partnership  and  the  administration  of  property, 


56 

shall  return  to  their  condition  prior  to  the  divorce,  as  if  the  latter  had 
never  taken  place. 

Such  return  shall  be  decreed  by  the  judge,  on  the  petition  of  both 
parties,  and  shall  produce  the  same  effect  as  the  re-establishment  of  the 
administration  of  the  husband,  in  the  case  of  Art.  210  of  this  Code. 

159- 

Art.  168.  The  effects  of  the  divorce  with  regard  to  the  legitimate 
children  of  the  divorced  couple,  shall  be  governed  by  the  respective 
provisions  contained  in  Book  1,  Title  12,  0}  the  rights  and  obligations 
between  parents  and  legitimate  children. 

20  of  law  57  of  1887. 


TITLE  VIII. 

Of  Second  Nuptials. 

Art.  169.  A  widowed  male  who,  having  children  of  a  prior  marriage 
under  his  paternal  power,  or  under  his  tutor  or  curatorship,  shall  desire 
to  marry  again,  must  make  a  formal  inventory  of  the  property  which  he 
may  be  administering  and  that  belongs  to  them  as  heirs  of  his  deceased 
wife,  or  under  any  other  title. 

A  special  curator  shall  be  appointed  to  the  children  for  the  purpose 
of  preparing  this  inventory. 

122  No.  2,  297,  435,  583. 

Art.  1 70.  A  curator  shall  be  appointed  even  though  the  children  have 
no  property  of  their  own  in  the  possession  of  the  father.  In  such  case, 
the  special,  curator  must  certify  thereto. 

Art.  171.  The  civil  authority  shall  not  permit  the  marriage  of  a 
widower  desiring  to  remarry,  without  the  presentation  of  an  authenti- 
cated certificate  of  the  appointment  of  a  special  curator  for  the  pur- 
poses aforementioned,  or  until  a  summary  investigation  is  made  showing 
that  the  widower  has  no  children  by  a  prior  marriage,  under  his 
paternal  power,  or  under  his  tutorship  or  curatorship. 

1758. 

Art.  172.  A  widower  who,  through  his  negligence,  shall  have  failed 
to  make  the  inventory  prescribed  in  the  preceding  article  in  due  time, 
shall  lose  his  right  to  succeed  as  forced  heir  or  as  intestate  heir  of  the  child 
whose  property  he  has  administered. 

1027. 

Art.  173.  When  a  marriage  shall  have  been  dissolved  or  declared  void, 
a  woman  who  is  pregnant  cannot  marry  again  before  the  birth,  or  (if 
there  be  no  signs  of  pregnancy)  before  the  expiration  of  two  hundred  and 
seventy  days  following  the  dissolution  or  declaration  of  nullity. 

But  from  this  term  may  be  deducted  all  the  days  which  may  have 
immediately  preceded  such  dissolution  or  declaration,  during  which  it 
shall  have  been  absolutely  impossible  for  the  husband  to  have  had  access 
to  the  wife. 

234,  235. 


5» 

Art.  174.  The  civil  authority  shall  not  permit  the  marriage  of  a 
woman  until  she  shall  prove  that  she  does  not  suffer  the  impediment 
referred  to  in  the  preceding  article. 

130,  par.  1. 

Art.  175.  A  widow  who,  having  children  by  a  prior  marriage  under 
her  tutorship  or  curatorship,  shall  desire  to  remarry,  must  comply  with 
the  provisions  of  article  599. 

i33i- 


59 


TITLE  IX. 

Obligations  and  Rights  Between  the  Spouses. 

Chapter  i. 
General  Rules. 

Art.  176.  The  spouses  are  obliged  to  be  faithful  to  each  other,  to 
mutually  assist  and  succor  each  other  in  all  conditions  of  life. 

The  husband  owes  protection  to  the  wife,  and  the  wife  obedience  to  the 
husband. 

Art.  177.  The  marital  power  is  the  aggregation  of  rights  which  the 
laws  grant  the  husband  over  the  person  and  property  of  the  wife. 

1 805  et  seq. 

Art.  178.  The  husband  has  the  right  to  oblige  his  wife  to  live  with  him 
and  to  follow  him  wherever  he  may  transfer  his  residence. 

This  right  ceases  when  its  enforcement  would  entail  imminent  danger 
to  the  life  of  the  wife. 

The  wife,  on  her  part,  has  the  right  to  be  received  by  the  husband  in 
his  house. 

153- 

Art.  i  79.  The  husband  must  furnish  the  wife  what  is  necessary  accord- 
ing to  his  powers,  and  the  wife  has  a  similar  obligation  with  regard  to  the 
husband,  if  the  latter  should  lack  property. 

411  No.  1,  419,  1796  No.  5. 

Art.  1 80.  By  the  act  of  the  marriage  a  property  partnership  is  entered 
into  between  the  spouses,  and  the  husband  assumes  the  administration 
of  that  of  the  wife,  according  to  the  rules  which  will  be  laid  down  in  Title 
XXII,  Book  4,  Of  Marriage  Agreements  and  of  the  Conjugal  Partnership. 

162,  163,  165,  167,  200,  1805,  1806,  2189  No.  8,  2502  No.  3. 

Those  who  may  have  married  outside  of  a  Territory  and  shall  take  up 
their  domicile  herein,  shall  be  considered  separate  in  property,  provided 
that  in  accordance  with  the  laws  under  which  they  married  no  property 
partnership  had  existed  between  them. 


6o 

Art.  181.  Without  the  written  authority  of  the  husband,  the  wife 
cannot  appear  in  court,  either  in  person  or  through  an  attorney,  whether 
sued  or  bringing  an  action. 

But  the  authority  of  the  husband  is  not  necessary  in  a  criminal  or 
police  cause  against  the  wife,  nor  in  litigation  of  the  wife  against  the 
husband,  or  of  the  husband  against  the  wife. 

The  husband,  nevertheless,  shall  always  be  obliged  to  furnish  the  wife 
the  assistance  she  may  require  for  her  judicial  actions  or  defense. 

2347  par.  4,  307,  308. 

Art.  182.  The  wife  cannot,  without  the  authority  of  the  husband, 
enter  into  any  contract,  nor  withdraw  from  a  prior  contract,  nor  remit  a 
debt,  nor  accept  or  repudiate  a  gift,  inheritance  or  legacy,  nor  acquire 
under  an  onerous  or  lucrative  title,  nor  convey,  mortgage  or  pledge. 

191,  192,   242   par.  2,  784,  1282,  1293,  1307  par.  2,  1504  par.  3, 
1796  No.  2,  1807,  1808,  2243,  2262. 

Art.  183.  The  authority  of  the  husband  must  be  granted  in  writing 
or  by  his  personally  intervening,  expressly  and  directly,  in  the  act, 

The  authority  of  the  husband  cannot  be  presumed  except  in  the  cases 
prescribed  by  law. 

192,  195,  301  par.  2,  1767. 

Art.  184.  The  wife  does  not  need  the  authority  of  the  husband  to 
dispose  of  her  own  property  by  a  testamentary  act  which  is  to  go  into 
effect  after  her  death. 

165,  204,  1061  last  par.,  309. 

Art.  185.  The  authority  of  the  husband  may  be  general  for  all  the  acts 
in  which  the  wife  requires  it,  or  special  for  one  class  of  affairs  or  for  a 
specific  business. 

Art.  186.  The  husband  may  at  will  revoke,  without  any  retroactive 
effect,  the  special  or  general  authority  he  may  have  granted  the  wife. 

2191,  2199. 

Art.  187.  The  husband  may  ratify  the  acts  for  which  he  may  not  have 
granted  his  wife  authority,  and  the  ratification  may  also  be  general  or 
special. 

The  ratification  may  be  implied,  by  acts  of  the  husband  unequivocally 
manifesting  his  acquiescence. 

742  par.  2,  767,  2 1 86  par.  2,  302. 


6i 

Art.  i  88.  The  authority  of  the  husband  may  be  supplied  by  that  of 
the  judge,  after  an  investigation,  when  the  husband  refuses  it  without 
just  cause,  and  the  wife  suffers  loss  thereby. 

It  may  likewise  be  supplied  by  the  judge  in  the  case  of  any  impediment 
on  the  part  of  the  husband,  such  as  real  or  apparent  absence,  when  the 
delay  would  entail  loss. 

191. 

Art.  189.  Neither  the  wife  nor  the  husband,  nor  both  together,  may 
alienate  or  mortgage  the  real  property  belonging  to  the  wife,  except  in 
the  cases  and  with  the  formalities  which  will  be  set  forth  in  the  Title  Of 
the  Conjugal  Partnership. 

204,  1810,  181 1,  303,483,  749- 

Art.  190.  If  by  reason  of  an  impediment  of  long  and  indefinite  dura- 
tion, such  as  interdiction,  prolonged  absence,  or  disappearance,  the  exer- 
cise of  the  marital  power  is  suspended,  the  provisions  of  Chapter  4,  of 
the  Title  Of  the  Conjugal  Partnership,  shall  be  observed. 

539,  55i,  i%H,etseq. 

Art.  191.  The  judicial  authority  represents  that  of  the  husband,  and 
produces  the  same  effects,  with  the  difference  stated  below. 

A  wife  acting  with  the  authority  of  the  husband,  binds  the  husband 
as  to  his  property  in  the  same  manner  as  if  the  act  were  of  the  husband ; 
and  binds  in  addition  her  own  property  to  the  extent  of  the  particular 
benefit  she  may  derive  from  the  act :  the  same  shall  be  the  case  if  the 
wife  has  been  judicially  authorized  on  account  of  a  temporary  impedi- 
ment in  the  husband  in  urgent  cases,  provided  that  the  consent  of  the 
latter  could  have  been  presumed. 

But  if  the  wife  shall  have  been  authorized  by  the  judge  against  the 
will  of  the  husband,  her  own  property  only  shall  be  bound ;  but  she  will 
not  obligate  the  partnership  property  nor  the  property  of  the  husband, 
except  to  the  extent  of  the  benefit  which  the  partnership,  or  the  husband, 
may  have  derived  from  the  act. 

Furthermore,  if  the  judge  should  authorize  the  wife  to  accept  an  in- 
heritance, she  must  accept  it  under  the  benefit  of  inventory;  and  with- 
out this  requisite  she  will  subject  only  her  own  property  to  the  results  of 
the  acceptance. 

206,  211  rule  4,  302,  1330,  1796  No.  2,  1806  par.  2,  1807,  1808, 
1282  par.  4,  1304,  1307  par.  2,  1815. 


62 


Art.  192.  The  authority  of  the  husband  is  presumed  in  the  purchase 
of  movable  things  by  the  wife  for  cash. 

The  authority  of  the  husband  is  also  presumed  in  purchases  on  trust, 
of  articles  naturally  destined  to  the  ordinary  consumption  of  a  family. 

But  it  is  not  presumed  in  the  purchase  on  trust  of  articles  of  luxury, 
jewelry,  valuable  furniture,  not  even  in  the  purchase  of  such  as  are  nat- 
urally destined  for  clothing  and  housekeeping  purposes,  unless  it  be 
proved  that  they  were  purchased  or  employed  in  the  use  of  the  wife  or 
of  the  family,  with  the  knowledge  of  and  without  any  objection  on  the 
part  of  the  husband. 

66  par.  2  and  3,  183  par.  2,  195,  261,  301   par.  2,  1807,  1808,  1776 
par.  2,  1504  par.  3,  1747. 

Art.  193.  A  husband  under  the  age  of  eighteen  years  requires  a 
curator  for  the  administration  of  the  conjugal  partnership. 

432,  340- 

Art.  194.  The  rules  contained  in  the  preceding  articles  are  subject  to 
exceptions  or  modifications  for  the  following  causes : 

1 .  The  fact  of  the  wife  being  engaged  in  a  profession,  industry  or  trade. 

2.  The  separation  of  property. 

Chapter  2. 
Exceptions  Relative  to  the  Profession  or  Trade  of  the  Wife. 

Art.  195.  If  a  married  woman  publicly  engages  in  any  profession  or 
industry  whatsoever  (such  as  principal  of  a  college,  school  teacher, 
actress,  midwife,  innkeeper,  nurse),  the  general  authority  of  the  hus- 
band is  presumed  for  all  acts  and  contracts  concerning  her  profession  or 
industry,  as  long  as  there  is  no  objection  or  protest  on  the  part  of  her 
husband,  notified  in  advance  to  the  public,  or  specially  to  the  party  con- 
tracting with  the  wife. 

66  pars.  2,  1776,  212,  1807,  1808. 

Art.  196.  A  married  woman  engaged  in  commerce,  is  subject  to  the 
special  rules  laid  down  in  the  Code  of  Commerce. 

Chapter  3. 

Exceptions  Relative  to  a  Simple  Separation  of  Property. 

Art.  197.  A  simple  separation  of  property  is  that  which  is  effected 
without  a  divorce,  by  virtue  of  a  judicial  decree,  or  by  a  provision  of  law. 

163,  165. 


63 

Art.  198.  A  woman  cannot  renounce  in  a  marriage  agreement  the 
power  to  demand  the  separation  of  the  property  to  which  she  is  entitled 
by  law. 

6  par.  2,  15,  1526,  1773. 

Art.  199.  In  order  that  a  woman  under  age  may  request  a  separation 
of  property,  she  must  be  authorized  therefor  by  a  special  curator. 

435,  583- 

Art.  200.  The  judge  shall  decree  the  separation  of  property  in  the 
event  of  the  insolvency  or  fraudulent  administration  of  the  husband. 

If  the  affairs  of  the  husband  should  be  in  a  bad  condition,  as  a  conse- 
quence of  reckless  speculation,  or  an  improper  or  careless  administra- 
tion, he  may  object  to  the  separation,  giving  bonds  or  mortgages  suffi- 
cient to  secure  the  interests  of  the  wife. 

163  par.  2,  539,  551  par.  2,  209,  210. 

Art.  201.  Proceedings  for  the  separation  of  property  having  been 
instituted,  the  judge  may,  on  the  petition  of  the  wife,  adopt  such  meas- 
ures as  he  may  consider  of  advantage  to  the  interests  of  the  latter,  dur- 
ing the  pendency  of  the  proceedings. 

158,  par.  2. 

Art.  202.  In  proceedings  for  the  separation  of  property  on  account 
of  the  bad  condition  of  the  affairs  of  the  husband,  the  confession  of  the 
latter  is  not  proof. 

1795,  par.  2,  2505. 

Art.  203.  The  separation  of  property  having  been  decreed,  the 
property  of  the  wife  shall  be  delivered  to  her,  and  with  regard  to  the 
division  of  the  acquets  and  gains  of  the  conjugal  partnership,  the  same 
rules  shall  be  observed  as  in  the  case  of  the  dissolution  of  marriage. 

The  wife  shall  from  then  on  receive  no  share  whatsoever  of  the  acquets 
and  gains,  of  the  conjugal  partnership  arising  from  the  administration 
of  the  husband;  and  the  husband,  on  the  other  hand,  shall  receive  no 
share  of  such  acquets  and  gains  due  to  the  administration  of  the  wife. 

162,  163,  165,  1809  Par-  2>  J820  No.  3. 

Art.  204.  A  wife  separate  in  property  does  not  require  the  authority 
of  her  husband  for  the  acts  and  contracts  relative  to  the  administra- 
tion and  enjoyment  of  what  she  administers  separately. 

Nor  does  she  require  the  authority  of  the  husband  to  alienate,  under 
any  title,  the  movables  which  she  administers  separately. 


64 

But  she  does  require  this  authority,  or  that  of  the  judge,  to  appear  in 
court,  even  in  proceedings  relating  to  her  separate  administration,  reserv- 
ing the  exceptional  cases  mentioned  in  article  1 8 1 . 

165,  182,  184,  189,  208,  211  rule  2,  439  last  par.,  539,  551. 

Art.  205.  In  the  condition  of  separation,  both  spouses  must  provide 
for  the  necessities  of  the  common  family  in  proportion  to  their  powers. 
The  judge,  in  a  necessary  case,  shall  adjust  the  contribution. 

161,  257,  258. 

Art.  206.  The  creditors  of  a  wife  separate  in  property  by  reason  of 
acts  or  contracts  which  could  have  been  legitimately  entered  into  by 
her,  shall  have  a  right  of  action  upon  the  property  of  the  wife. 

The  husband  shall  not  be  responsible  with  his  property,  unless  he 
shall  have  countenanced  as  surety,  or  otherwise,  the  obligations  con- 
tracted by  the  wife. 

He  shall  also  be  liable,  in  proportion  to  the  benefit  he  may  have 
derived  from  the  obligations  contracted  by  the  wife;  there  being  com- 
prised in  this  benefit  that  of  the  common  family,  in  the  part  in  which  by 
law  he  should  have  provided  for  the  necessities  of  the  latter. 

A  simple  authority  does  not  make  him  liable. 

191  par.  3,  211  rule  3,  1806  par.  2,  1815,  18 16. 

Art.  207.  If  the  wife  separate  in  property  confers  upon  the  husband 
the  administration  of  any  of  such  property,  the  husband  shall  be  obli- 
gated to  the  wife  as  a  simple  agent. 

221  rule  2,  2157  et  seq. 

Art.  208.  The  wife  separate  in  property  shall  be  given  a  curator  for 
the  administration  thereof,  in  all  cases  in  which  if  she  were  single  she 
would  require  a  curator  to  administer  the  same. 

The  right  granted  the  husband  in  article  204  shall  not  ceasQ  by  virtue 
of  this  curatorship. 

439,  par.  3. 

Art.  209.  A  separation  of  property,  judicially  decreed  on  account  of 
the  bad  state  of  the  affairs  of  the  husband,  may  terminate  by  a  decree 
of  the  judge,  on  the  petition  of  both  spouses ;  and  without  this  requisite 
the  separation  shall  legally  subsist. 

200. 


65 

0 

Art.  210.  The  legal  re-establishment  of  the  administration  of  the 
husband  restores  things  to  their  previous  condition,  as  if  the  separation 
of  property  had  never  existed.  But  all  the  acts  executed  by  the  wife 
legitimately,  during  the  separation  of  property,  shall  be  valid  as  if  the 
court  had  authorized  them. 

The  husband,  in  order  to  safeguard  his  liability,  shall  make  a  formal 
inventory  of  the  property  of  the  wife  which  again  comes  under  his  ad- 
ministration. —  — 

167,  209,  1819. 

Art.  211.  If  a  donation  be  made  to  a  married  woman,  or  if  she  be  left 
an  inheritance  or  legacy  under  the  precise  condition  that  the  husband 
should  not  have  the  administration  of  the  things  donated,  inherited, 
or  bequeathed,  and  if  said  donation,  inheritance,  or  legacy  should  be 
accepted  by  the  wife  with  the  authority  of  the  husband  or  of  the  judge 
in  his  place,  the  following  rules  shall  be  observed : 

1.  The  husband  must  require  that  the  inheritance  be  accepted  under 
the  benefit  of  inventory,  under  the  penalty  of  becoming  liable  with  his 
property  for  the  results  of  the  acceptance. 

1304,  1307  par.  2. 

2.  With  regard  to  things  donated,  inherited  or  bequeathed,  the  pro- 
visions of  articles  204  to  207  shall  be  observed. 

3.  The  contracts  of  the  wife  in  which  the  authority  of  the  husband 
does  not  appear,  and  which  could  be  celebrated  by  her  without  such 
authority,  shall  bind  her  as  to  the  property  which  she  administers  sepa- 
rately. 

206  par.  4. 

4.  The  contracts  authorized  by  the  husband,  or  by  the  judge  in  his 
place,  shall  be  subject  to  the  provisions  of  art.  191. 

5.  The  fruits  of  the  things  which  she  administers  and  all  that  she  ac- 
quires therewith,  shall  be  exclusively  of  the  wife. 

1809  par.  2. 

Art.  212.  If  it  should  have  been  stipulated  in  the  marriage  agreement 
that  the  wife  should  administer  part  of  her  property  separately,  the  rules 
of  the  preceding  article  shall  apply  to  this  partial  separation. 

1776,  1820.  No.  3. 


66 


TITLE  X. 

Of  Legitimate  Children  Conceived  in  Matrimony. 

Chapter  i. 

General  Rules. 

Art.  213.  A  child  conceived  during  the  marriage  of  his  parents  is  a 
legitimate  child. 

51,  52  par.  4,  149,  228,  229,  230,  236,  237,  238,  239,  245,  246.     6 
and  20  of  law  57  of  1887.     52  of  law  153  of  1887. 

Art.  214.  A  child  born  after  the  expiration  of  one  hundred  and 
eighty  days  next  following  the  marriage,  is  considered  to  have  been  con- 
ceived therein,  and  has  the  husband  for  father. 

The  husband,  however,  need  not  recognize  the  child  as  his  own,  if  he 
shall  prove  that  during  the  entire  time  in  which,  according  to  article  92, 
the  conception  could  have  been  presumed,  it  was  an  absolute  physical 
impossibility  for  him  to  have  had  access  to  his  wife. 

92,  237,  217,  220,  230. 

Art.  215.  Adultery  on  the  part  of  the  wife,  even  though  committed 
during  the  time  in  which  the  conception  could  have  taken  place,  does  not 
in  itself  authorize  the  husband  not  to  recognize  the  child  as  his  own.  But 
if  the  adultery  be  proved  during  such  period,  any  proof  he  shall  present 
of  any  other  acts  as  evidence  that  he  is  not  the  father,  shall  be  admitted. 

Art.  216.  During  the  life  of  the  husband,  no  one  can  charge  the  ille- 
gitimacy of  the  child  conceived  during  the  marriage,  but  the  husband 
himself. 

335  No.  1,  337. 

Art.  217.  Any  complaint  of  the  husband  against  the  legitimacy  of  the 
child  conceived  by  his  wife  during  marriage,  must  be  made  within  sixty 
days  from  the  date  on  which  he  had  knowledge  of  the  birth. 

The  residence  of  the  husband  in  the  place  of  the  birth  of  the  child  leads 
to  a  presumption  that  he  knew  thereof  immediately ;  unless  it  be  proved 
that  there  was  a  concealment  of  the  birth  on  the  part  of  the  wife. 

218,  237  par.  4,  247. 


67 

Art.  2  i  8.  If  at  the  time  of  the  birth  the  husband  was  absent,  it  shall 
be  presumed  that  he  had  knowledge  thereof  immediately  after  his  return 
to.  the  residence  of  the  wife,  excepting  in  the  case  of  concealment  men- 
tioned in  the  preceding  paragraph. 

Art.  219.  If  the  husband  should  die  before  the  expiration  of  the  time 
granted  him  by  the  laws  to  declare  that  he  does  not  recognize  the  child 
as  his  own,  this  may  be  done  in  the  same  terms  by  the  heirs  of  the  hus- 
band, and  in  general  by  any  person  whom  the  alleged  legitimacy  of  the 
child  may  cause  actual  damage. 

vSuch  right  shall  cease,  if  the  father  shall  have  recognized  the  son  as 
his  own  in  a  testament  or  in  another  public  instrument. 

221,  222,  248  last  par.,  327,  335  et  seq. 

Art.  220.  On  the  petition  of  any  person  having  an  actual  interest 
therein,  the  judge  shall  declare  the  illegitimacy  of  a  child  born  after  the 
expiration  of  three  hundred  days  next  following  the  dissolution  of  the 
marriage. 

If  it  shall  have  been  an  absolute  physical  impossibility  for  the  husband 
to  have  had  access  to  the  wife  before  the  dissolution  of  the  marriage,  the 
three  hundred  days  shall  be  counted  from  the  date  upon  which  this  im- 
possibility began. 

What  has  been  said  regarding  the  dissolution  applies  to  the  case  of  the 
separation  of  the  spouses  by  a  declaration  of  the  nullity  of  the  marriage. 

221,  248  No.  1,  and  last  par. 

Art.  221.  The  heirs  and  other  persons  actually  interested  shall  be 
allowed,  for  the  purpose  of  instituting  proceedings  charging  illegitimacy, 
a  period  of  sixty  days  from  the  day  they  heard  of  the  death  of  the  father, 
in  the  case  of  article  219,  or  upon  which  they  heard  of  the  birth  of  the 
child,  in  the  case  of  article  220. 

If  the  persons  interested  shall  have  entered  upon  actual  possession 
of  the  property  without  objection  on  the  part  of  the  alleged  legitimate 
child,  they  may  plead  the  illegitimacy  at  any  time  that  he  or  his  heirs 
should  dispute  their  rights. 

If  the  husband  shall  have  disappeared,  the  first  of  the  terms  fixed  in 
this  article  shall  be  counted  from  the  date  of  the  first  decree  of  possession 
granted  his  presumptive  heirs. 

99- 

Art.  222.  The  legitimate  ascendants  of  the  husband  shall  have  the 
right  to  institute  proceedings  charging  illegitimacy,  even  though  they 
have  no  part  whatsoever  in  the  succession  of  the  husband;  but  they 
must  do  so  within  the  terms  fixed  in  the  preceding  article. 


68 

Art.  223.  No  complaint  as  to  the  legitimacy  of  the  son,  whether  made 
by  the  husband,  or  by  another  person,  shall  have  any  value,  if  not  inter- 
posed before  the  judge  within  the  proper  time,  which  judge  shall  appoint 
a  curator  for  the  child  requiring  one,  for  his  defense  in  such  proceedings. 

217,  218,  221. 

The  mother  shall  be  cited,  but  not  obliged  to  appear  in  the  proceed- 
ings. 

The  testimony  of  the  mother  in  proceedings  as  to  the  legitimacy  of  the 
child  that  she  conceived  him  in  adultery,  shall  not  be  admitted. 

Art.  224.  During  the  proceedings,  the  legitimacy  of  the  child  shall  be 
presumed,  and  he  shall  be  supported  and  treated  as  legitimate ;  but  the 
illegitimacy  having  been  judicially  declared,  the  husband,  or  any  other 
complainant,  shall  have  the  right  to  have  the  mother  compensate  him 
for  all  damages  he  may  have  suffered  through  the  alleged  legitimacy. 

4i7. 

Chapter  2. 

Special  Rules  for  Cases  of  Divorce  and  Nullity  of  Marriage.* 

Art.  225.  A  recently  divorced  woman,  or  one  who,  during  the  pend- 
ency of  divorce  proceedings,  being  actually  separated  from  her  husband, 
should  believe  herself  to  be  pregnant,  shall  inform  the  husband  thereof 
within  the  first  thirty  days  of  the  actual  separation. 

A  similar  announcement  shall  be  made  by  the  wife  who  during  pro- 
ceedings for  the  annulment  of  a  marriage,  or  the  annulment  having  been 
recently  declared,  shall  believe  herself  to  be  pregnant. 

If  the  wife  should  make  these  announcements  after  said  thirty  days, 
they  shall  be  valid,  provided  the  judge,  after  an  investigation,  shall 
declare  that  the  delay  was  justifiable  or  excusable. 

157  rule  5,  231,  232. 

Art.  226.  The  husband  may,  in  view  of  this  announcement,  or  even 
without  it,  send  the  wife  a  suitable  companion  to  take  care  of  her,  and 
in  addition  a  midwife  to  be  present  at  the  birth ;  and  the  wife  who  be- 
lieves herself  to  be  pregnant  shall  be  obliged  to  receive  them,  unless  the 
judge,  finding  the  objections  of  the  wife  to  the  persons  the  husband  may 
have  sent,  to  be  well  founded,  shall  select  others  for  such  care  and  attend- 
ance. 

*  See  arts.  20  of  law  57  of  1887,  51  and  213  of  this  Code. 


69        , 

The  care  and  attendance  shall  be  at  the  expense  of  the  husband ;  but 
if  it  be  proved  that  the  wife  acted  in  bad  faith,  pretending  to  be  preg- 
nant without  being  so,  or  that  the  child  is  adulterine,  the  husband  shall 
be  indemnified.  • 

The  care  and  attendance  may  last  the  time  necessary,  in  order  that 
there  may  be  no  doubt  as  to  the  fact  and  circumstances  of  the  birth,  or 
as  to  the  identity  of  the  recently  born. 

229,    230. 

Art.  227.  The  husband  shall  also  have  the  right  to  have  the  wife 
placed  with  a  respectable  family  in  which  he  has  confidence  and  the 
wife  who  believes  herself  to  be  pregnant  must  reside  with  such  family, 
unless  the  judge,  after  hearing  the  reasons  of  the  wife  and  the  husband, 
shall  deem  it  advisable  to  designate  another. 

157,  No.  2. 

Art.  228.  If  the  care  and  attendance  do  not  take  place  because  the 
wife  has  not  informed  the  husband  of  the  pregnancy,  or  because  without 
just  cause  she  has  refused  to  change  her  residence,  her  husband  having 
requested  it,  or  because  she  has  removed  herself  from  the  care  of  the 
family  or  persons  selected  for  the  care  and  attendance,  or  because  she 
has  eluded  their  vigilance  in  any  way,  the  husband  shall  not  be  obliged 
to  recognize  the  fact  and  circumstances  of  the  birth,  except  in  so  far  as 
they  are  unequivocally  proved  on  the  part  of  the  wife  or  of  the  child,  in 
proceedings  in  which  both  parties  are  heard  (juicio  contradictor  id) . 

Art.  229.  If  the  husband,  after  the  aforementioned  announcement, 
should  not  avail  himself  of  his  right  to  send  the  caretaker  and  midwife, 
or  to  place  the  woman  with  a  reputable  and  trustworthy  family,  he  shall 
be  obliged  to  accept  the  declaration  of  the  wife  regarding  the  fact  and 
circumstances  of  the  birth. 

Art.  230.  Even  though  the  husband  take  all  the  precautions  per- 
mitted him  by  the  preceding  articles,  or  without  them,  the  fact  and 
circumstances  of  the  birth  be  satisfactorily  established,  he  retains  the  right 
not  to  recognize  the  child  as  his  own,  in  accordance  with  articles  213  and 
214,  by  instituting  proceedings  as  to  the  illegitimacy  within  the  proper 
time. 

Art.  231.  If  the  announcement  prescribed  by  article  225  cannot  be 
made  to  him,  it  may  be  made  to  any  of  his  relatives  by  consanguinity 
within  the  fourth  degree,  over  twenty-one  years  of  age,  the  legitimate 
ascendants  being  given  the  preference;  and  the  person  to  whom  the 
announcement  is  made  may  adopt  the  measures  indicated  in  articles  226 
and  227. 


7o 

Chapter  3. 
Rules  Relative  to  the  Posthumous  Child. 

Art.  232.  The  husband  being  dead,  the  woman  who  believes  herself 
to  be  pregnant  may  announce  it  to  those  who,  if  the  posthumous  child 
should  not  exist,  would  be  called  upon  to  succeed  the  deceased. 

The  announcement  must  be  made  within  thirty  days  next  following 
her  knowledge  of  the  death  of  the  husband,  but  a  delay  may  be  justified 
or  excused,  as  in  the  case  of  article  225,  third  paragraph. 

The  persons  interested  shall  have  the  rights  granted  the  husband  in 
the  case  of  a  recently  divorced  woman,  but  subject  to  the  same  restric- 
tions and  charges. 

Art.  233.  The  mother  is  entitled  to  receive  from  the  property  which 
will  belong  to  the  posthumous  child,  if  he  be  born  alive  and  within  the 
proper  time,  what  may  be  necessary  for  her  maintenance  and  the  birth ; 
and  even  though  the  child  be  not  born  alive,  or  there  should  have  been 
no  pregnancy,  she  shall  not  be  obliged  to  return  what  may  have  been 
allowed  her ;  unless  it  be  proved  that  she  has  acted  in  bad  faith,  pretend- 
ing pregnancy,  or  that  the  child  is  illegitimate. 

417,  418. 

Chapter  4. 

Rules  Relative  to  the  Case  of  a  Woman  Contracting  a  Subsequent  Marriage. 

Art.  234.  When,  by  reason  of  a  woman  having  contracted  a  new 
marriage,  there  should  be  doubt  as  to  which  of  two  marriages  a  child 
belongs,  and  a  judicial  decision  is  requested,  the  judge  shall  decide  by 
taking  into  consideration  the  circumstances,  and  hearing  in  addition  the 
opinion  of  physicians,  if  he  should  deem  it  advisable. 

173. 

Art.  235.  A  woman  who  shall  have  contracted  a  new  marriage  before 
the  proper  time  and  her  new  husband,  shall  be  bound  in  solido  to  com- 
pensate all  damages  and  expense  incurred  by  third  persons  on  account 
of  the  uncertainty  of  the  paternity. 

173. 


7i 

TITLE  XI. 

Of  Legitimated  Children. 

Art.  236.  Legitimate  children  are  also  those  conceived  out  of  wed- 
lock and  legitimated  by  the  marriage  subsequently  contracted  by  their 
parents,  according  to  the  rules  and  under  the  following  conditions. 

51,52,213,149,245.     6  and  20  of  law  57  of  1887.     52  of  law  153 
of  1887. 

Art.  237.*  A  subsequent  marriage  legitimates  ipso  jure  the  children 
conceived  before  such  marriage  and  born  during  the  same. 

The  husband,  nevertheless,  may  question  the  legitimacy  of  a  child 
born  before  the  expiration  of  one  hundred  and  eighty  days  next  follow- 
ing the  marriage,  if  he  prove  that  it  was  an  absolute  physical  impossi- 
bility for  him  to  have  had  access  to  the  mother  throughout  the  entire 
time  that  the  conception  could  be  presumed  according  to  the  legal  rules. 

But  even  without  this  proof  he  may  question  the  legitimacy  of  the  son, 
if  he  did  not  have  knowledge  of  the  pregnancy  at  the  time  of  marriage, 
and  if  by  positive  acts  he  has  not  shown  that  he  recognized  the  child 
after  its  birth. 

In  order  that  the  complaint  on  the  part  of  the  husband  may  be  valid, 
it  shall  be  necessary  that  it  be  made  within  the  term  and  in  the  form 
prescribed  in  the  preceding  Chapter. 

92,  214   par.  2,  217  to  224.     52  of  law  153  of  1887. 

Art.  238.  The  marriage  of  the  parents  legitimates  also  ipso  jure  those 
which  either  may  have  recognized  as  natural  children  of  both  with  the 
legal  requisites. 

52  par.  2,  318,  368.     7  of  law  57  of  1887.     54-58  of  law  153  of 
1887. 

Art.  239.  With  the  exception  of  the  cases  of  the  two  preceding  articles, 
a  subsequent  marriage  does  not  produce  ipso  jure  the  legitimacy  of  the 
children.  In  order  that  it  be  produced,  it  is  necessary  that  the  parents 
designate  in  the  marriage  act,  or  in  a  public  instrument,  the  children 
upon  whom  they  confer  this  benefit,  whether  such  children  be  alive  or 
dead.f 

51,  318  1758  par.  2,  1760.     6  and  7  of  law  57  of  1887.     54~58  of 
law  153  of  1887. 

*  This  article  is  amended  by  art.  52  of  law  153  of  1887. 

t  The  corresponding  article  of  the  Code  of  Chile,  208,  says:  "With  the  exception  of 
the  two  cases  *  *  *  marriage  does  not  produce  ipso  jure  the  legitimation." 
*     *     * 


72 

Art.  240.  When  the  legitimation  is  not  produced  ipso  jure,  notice  of 
the  public  instrument  of  legitimation  must  be  given  to  the  person  it  is 
desired  to  legitimate.  And  if  the  latter  be  under  marital  authority, 
or  be  one  who  requires  a  tutor  or  curator  for  the  administration  of  his 
or  her  property,  the  notice  shall  be  given  to  the  husband  or  to  the  tutor 
or  general  curator,  or  in  the  absence  of  the  latter  to  a  special  curator. 

1758,  435,  583,  249. 

Art.  241.  A  person  who  does  not  need  a  tutor  or  curator  for  the 
administration  of  his  or  her  property,  or  who  does  not  live  under  the 
marital  power,  may  accept  or  repudiate  the  legitimation  freely. 

428. 

Art.  242.  A  person  who  requires  a  tutor  or  curator  for  the  adminis- 
tration of  his  or  her  property,  cannot  accept  nor  repudiate  the  legitima- 
tion, except  with  the  consent  of  his  or  her  tutor  or  general  curator,  or  of 
a  special  curator,  and  after  a  judicial  decree  rendered  after  an  investi- 
gation. 

A  woman  living  under  the  marital  power  requires  the  consent  of  her 
husband,  or  of  the  court  in  substitution,  to  accept  or  repudiate  the 
legitimation. 

435,  583,  182,  183,  188. 

Art.  243.  The  person  who  accepts  or  repudiates,  must  declare  it  in 
a  public  instrument  within  ninety  days  next  following  the  service  of 
notice.  Upon  the  expiration  of  this  term,  it  shall  be  understood  that 
he  or  she  accepts,  unless  it  be  proved  that  it  was  impossible  to  make  the 
declaration  within  the  legal  term. 

1758,  66  pars.  2  and  3,  249. 

Art.  244.  The  legitimation  benefits  the  legitimate  posterity  of  the 
legitimated  children. 

If  the  child  legitimated  be  dead,  the  notice  shall  be  served  upon  his 
legitimate  descendants,  who  may  accept  or  repudiate  it  in  accordance 
with  the  preceding  articles. 

249. 

Art.  245.  Those  legitimated  by  a  subsequent  marriage  are  equal  in 
all  to  the  legitimate  children  conceived  in  wedlock. 

But  the  benefit  of  legitimation  does  not  retroact  to  a  date  prior  to  the 
marriage  which  produced  it. 

40.     132  of  law  153  of  1887. 


73 

Art.  246.  The  designation  legitimate  children,  even  though  with  the 
qualification  of  born  of  legitimate  marriage,  shall  be  understood  to  com- 
prise those  legitimated  both  in  the  laws  and  decrees  as  in  testamentary 
acts  and  in  contracts,  unless  those  legitimated  are  markedly  and 
expressly  excepted. 

236.     132  of  law  153  of  1887. 

Art.  247.  The  legitimation  of  one  born  after  the  celebration  of  the 
marriage,  cannot  be  impugned  except  by  the  same  persons  and  in  the 
same  manner  as  the  legitimacy  of  one  conceived  in  marriage. 

216  to  223. 

Art.  248.  In  other  cases  the  legitimation  may  be  impugned  by  prov- 
ing any  of  the  following  causes : 

1 .  That  the  person  legitimated  could  not  have  had  as  father  the  person 
making  the  legitimation. 

2.  That  the  person  legitimated  did  not  have  for  mother  the  person 
declaring  the  legitimation;  this  allegation  being  subject  to  the  provis- 
ions of  Title  XVIII,  Of  Disputed  Maternity. 

No  one  shall  be  heard  against  the  legitimation  but  those  who  prove 
that  they  have  an  actual  interest  therein,  and  the  legitimate  ascendants 
of  the  father  or  mother  making  the  legitimation ;  the  latter  within  sixty 
days  from  the  date  they  had  information  of  the  legitimation,  and  the 
former  within  three  hundred  days  next  following  the  date  on  which  they 
had  an  actual  interest,  and  could  enforce  their  right. 

219  etseq.,  327,  335.     58  par.  3,  of  law  153  of  1887. 

Art.  249.  Only  the  supposed  legitimated  person,  and  in  the  case  of 
article  244  his  legitimate  descendants  immediately  called  to  the  benefit 
of  legitimation,  shall  have  the  right  to  impugn  it  on  account  of  the 
omission  to  serve  the  notice  or  acceptance  prescribed  by  articles  240, 
243,  and  244. 


74 


TITLE  XII. 

Of  the  Rights  and  Obligations  between  Parents  and  Legitimate 

Children. 

Art.  250.  Legitimate  children  owe  respect  and  obedience  to  their 
father  and  their  mother;  but  they  shall  be  especially  subject  to  their 
father. 

288,  333.     53  of  law  153  of  1887. 

Art.  251.  Although  emancipation  gives  a  child  the  right  to  act  inde- 
pendently, he  is  always  obliged  to  take  care  of  his  parents  in  their  old 
age,  or  when  in  a  state  of  dementia,  and  in  all  conditions  of  life  in 
which  they  may  need  his  assistance. 

1025  No.  3,  411  No.  3. 

Art.  252.  All  other  legitimate  ascendants  are  entitled  to  assistance 
of  the  same  character,  in  the  event  of  the  non-existence  or  insufficiency 
of  immediate  descendants. 

411  No.  3,  260. 

Art.  253.  The  personal  care  of  the  raising  and  education  of  their 
legitimate  children  is  the  joint  duty  of  the  parents,  or  of  the  surviving 
father  or  mother. 

149,  161,  205,  257,  258,  517,  par.  2.     61  to  64  of  law  153  ol  1887. 

Art.  254.  The  judge  may,  in  case  of  the  physical  or  moral  disability 
of  both  parents,  confide  the  personal  care  of  the  children  to  another  com- 
petent person  or  persons. 

In  the  selection  of  these  persons,  preference  shall  be  given  to  the 
nearest  consanguineous  relatives,  and  especially  to  the  legitimate 
ascendants. 

260,  265. 

Art.  255.  For  all  these  resolutions,  the  judge  shall  proceed  briefly 
and  summarily,  after  hearing  the  relatives. 

61. 

Art.  256.  The  father  or  mother  from  whose  personal  care  the  children 
shall  be  removed,  shall  not  be  prohibited  thereby  from  visiting  them 
with  the  frequency  and  liberty  which  the  judge  may  consider  advisable. 


75 

Art.  257.  The  cost  of  maintenance,  education  and  establishment  of 
legitimate  children  is  to  be  borne  by  the  conjugal  partnership,  accord- 
ing to  the  rules  which  will  be  laid  down  when  treating  thereof. 

If  the  wife  is  separate  in  property,  said  expenses  shall  be  defrayed  by 
the  husband,  the  wife  contributing  the  proportion  which  the  judge 
may  designate;  and  even  a  divorced  woman  who  may  not  have  given 
cause  for  the  divorce  shall  be  obliged  to  contribute. 

But  if  a  child  should  have  property  of  his  own,  the  cost  of  his  estab- 
lishment, and,  in  a  necessary  case  that  of  his  maintenance  and  educa- 
tion, may  be  taken  therefrom,  the  capitals  being  kept  intact  in  so  far 
as  possible. 

149,  161,  205,  253,  411  No.  2,  1796  No.  5,  334,  par.  4.     62  of  law 
153  of  1887. 

Art.  258.  Upon  the  death  of  one  of  the  parents,  the  expense  of  main- 
tenance, education  and  establishment  of  the  children  shall  be  borne  by 
the  surviving  parent,  according  to  the  terms  of  the  final  paragraph  of  the 
preceding  article. 

253- 

Art.  259.  The  decisions  of  the  judge,  in  the  respects  indicated  in  the 
preceding  articles,  shall  be  revoked  by  the  disappearance  of  the  cause 
which  may  have  served  as  a  ground  therefor;  and  they  may  also  be 
modified  or  revoked  by  the  judge  in  any  case  and  at  any  time,  if  there 
be  just  cause  therefor. 

Art.  260.  The  obligation  to  support  and  educate  a  child  who  has  no 
property,  passes,  by  reason  of  the  want  or  insufficiency  of  the  parents, 
to  the  legitimate  grandparents  by  both  lines  conjointly. 

The  judge  shall  regulate  the  contribution,  taking  into  consideration 
the  means  of  the  contributors,  and  may  from  time  to  time  modify  it, 
according  to  the  circumstances  which  may  arise.  • 

252. 

Art.  261.  If  a  child  under  age,  absent  from  the  paternal  house, 
should  be  in  a  condition  of  urgent  necessity,  in  which  he  cannot  be 
assisted  by  the  father,  the  authority  of  the  latter  shall  be  presumed  for 
anything  which  may  be  furnished  him,  by  any  person,  for  purposes  of 
support,  taking  into  consideration  the  means  and  social  position  of  the 
father. 

But  if  such  child  should  observe  bad  conduct,  or  if  there  be  reason  to 
believe  that  he  is  absent  without  the  consent  of  his  father,  such  assist- 
ance cannot  be  recovered  from  the  father,  unless  it  was  absolutely 
necessary  for  the  personal  physical  subsistence  of  the  child. 


76 

The  person  furnishing  the  assistance  must  inform  the  father  thereof 
as  soon  as  possible.  Any  voluntary  omission  in  this  respect,  shall  cause 
the  responsibility  of  the  father  to  cease. 

What  has  been  said  of  the  father  in  the  preceding  paragraphs,  applies, 
in  a  proper  case,  to  the  mother,  or  to  the  person  to  whom  by  reason  of 
the  death  or  disability  of  the  parents,  the  support  of  the  child  falls. 

66  par.  2,  192,  1504  par.  3,  1747,  301. 

Art.  262.  The  father  shall  have  the  power  to  correct  and  punish  his 
children  in  moderation,  and  when  this  is  not  sufficient,  he  may  impose 
upon  them  the  penalty  of  confinement,  not  to  exceed  one  month,  in  a 
correctional  institution. 

For  this  purpose  the  complaint  of  the  father  shall  be  sufficient,  and 
the  judge  by  virtue  thereof,  shall  issue  the  order  of  confinement. 

But  if  the  child  have  attained  the  age  of  sixteen  years,  the  judge  shall 
not  order  the  confinement  until  the  motives  have  been  qualified,  and  he 
may  extend  such  confinement  to  not  more  than  six  months. 

The  father  may,  at  will,  have  the  confinement  discontinued. 

288,  315  No.  1. 

Art.  263.  The  rights  granted  the  father  in  the  preceding  article  are 
extended,  in  the  absence,  disability,  or  death  of  the  father,  to  the  mother 
or  to  any  other  person  who  has  charge  of  the  child ;  but  they  shall  never 
be  exercised  against  a  child  over  twenty-one  years  of  age,  or  who  has 
been  qualified  as  to  age. 

254,  260.     53,  par.  2,  of  law  153  of  1887. 

Art.  264.  The  father,  and  in  his  absence  the  mother,  shall  have  the 
right  to  select  the  future  condition  or  profession  of  the  son,  and  of  direct- 
ing his  education  in  the  manner  which  they  may  consider  most  advan- 
tageous to  him.* 

But  they  cannot  force  him  to  marry  against  his  will. 

Nor,  upon  his  attaining  the  age  of  twenty-one  years,  can  they  oppose 
his  taking  up  an  honorable  career,  more  to  his  taste  than  that  selected 
for  him  by  his  father  or  mother. 

253- 

Art.  265.  The  right  granted  by  the  preceding  article  to  the  father  or 
mother,  shall  cease  with  regard  to  the  children  who,  by  reason  of  the  bad 
conduct  of  the  father  or  mother,  shall  have  been  removed  from  their 
power  and  entrusted  to  another  person,  which  person  shall  exercise  this 
right  with  the  consent  of  the  tutor  or  curator,  if  said  person  were  not  such. 

161,  315  Nos.  3  and  4,  448,  254.     53,  par.  2,  of  law  153  of  1887. 


77 


Art.  266.  The  rights  granted  legitimate  parents  in  the  preceding 
articles  cannot  be  exercised  over  a  child  which  may  have  been  taken  by 
them  to  the  foundling  asylum,  or  abandoned  in  any  other  manner. 

268,  315,  No.  2. 

Art.  267.  Parents  who  by  their  bad  conduct  should  have  given  cause 
for  a  decree  separating  the  children  from  their  side,  shall  also  incur  a 
similar  deprivation  of  rights,  unless  the  decree  shall  have  been  subse- 
quently revoked. 

265,  315,  Nos.  3  and  4. 

Art.  268.  If  the  child  abandoned  by  its  parents  shall  have  been  sup- 
ported and  brought  up  by  another  person,  and  the  parents  should  desire 
to  remove  it  from  the  power  of  such  person,  they  must  pay  him  the  cost 
of  the  child's  maintenance  and  education,  as  appraised  by  the  judge. 

266. 


78 


TITLE  XIII.* 
Of  Adoption. 

Art.  269.  Adoption  is  the  fathering  (prohijamiento)  of  a  person,  or 
the  admission  in  the  place  of  a  child  of  a  person  who  is  not  one's  child  by 
nature. 

The  person  making  the  adoption  is  called  the  adopting  father  or  mother, 
or  simply  adopter;  and  the  person  in  whose  favor  it  is  made,  the  adoptive 
child  or  simply  the  adoptive  or  adopted. 

272,  287,  par.  2. 

Art.  270.  In  order  to  adopt  it  is  necessary  that  the  adopter  be  not 
under  the  power  or  dependence  of  another  person ;  but  a  married  woman 
may  adopt  as  permitted  by  this  Code. 

274,  275. 

Art.  271.  In  order  to  adopt  it  is  also  necessary  that  the  adopter  shall 
have  attained  the  age  of  twenty-one  years,  and -that  he  be  fifteen  years 
older  than  the  person  adopted. 

Art.  272.  Persons  having  legitimate  descendants  cannot  adopt. 

Art.  273.  Adoption  can  take  place  between  persons  of  the  same  sex 
only :  the  adopting  father  most  adopt  a  male,  and  the  adopting  mother 
a  female. 

.  275- 

Art.  274.  A  married  person  cannot  adopt  without  the  consent  of  his 
spouse. 

Art.  275.  The  spouses  may  adopt  jointly,  and  in  this  case  only  the 
adoption  may  be  made  without  distinction  in  favor  of  persons  of  either 
sex. 

With  the  exception  of  the  case  provided  for  in  this  article  no  one  can 
be  adopted  by  more  than  one  person. 

Art.  276.  A  tutor  or  curator  cannot  adopt  the  person  he  may  have 
or  has  had  under  his  guardianship,  until  the  latter  shall  have  attained 
the  age  of  eighteen  years,  and  until  the  former's  accounts  of  his  tutor- 
ship or  curatorship  shall  have  been  finally  approved  and  his  administra- 
tion closed. 

Art.  277.  For  the  adoption  of  a  person  of  legal  age,  having  the  free 


*  This  title  is  from  the  Code  of  Cundinamarca;  it  does  not  appear  in  the  Chilian 
Civil  Code. 


79 

administration  of  his  property,  his  express  consent  is  necessary :  for  the 
adoption  of  a  minor,  or  of  a  person  subject  to  the  power  of  another,  there 
is  necessary,  in  addition,  the  consent  of  the  persons  respectively  whose 
consent  is  necessary  to  permit  the  minor  to  marry,  or  of  the  person  under 
whose  power  or  guardianship  the  person  to  be  adopted  may  be. 

279,  117,  120. 

Art.  278.  In  the  event  that  the  person  whom  it  is  desired  to  adopt  has 
property  or  is  under  age,  or  who  for  any  other  cause  is  under  the  power 
or  guardianship  of  another  person,  the  adoption  cannot  take  place  with- 
out the  adopter  giving  security,  to  the  satisfaction  of  the  father,  tutor, 
curator,  or  person  under  whose  power  the  adopted  is,  for  the  said  prop- 
erty; the  surety  must  furthermore  be  approved  by  the  judge,  and  the 
property  must  also  be  received  under  a  formal  or  judicial  inventory, 
which  shall  be  filed  in  a  protocol. 

293,  297. 

Art.  279.  For  the  adoption  it  is  necessary  in  every  case  that  the 
permission  of  the  judge  or  prefect  of  the  domicile  of  the  adopted  be  first 
secured.  If  the  person  adopted  should  be  under  age,  or  a  person  reputed 
a  minor,  the  judge  shall,  in  addition  to  the  measure  prescribed  in  the 
foregoing  article,  take  such  other  measures  as  he  may  consider  necessary 
for  the  benefit  of  the  person  adopted,  and  for  the  security  of  his  property. 

277. 

Art.  280.  After  the  judicial  permission  shall  have  been  obtained  the 
proper  instrument  shall  be  prepared  before  the  respective  notary, without 
which  the  adoption  shall  be  without  effect.  This  instrument  shall  be 
signed  by  the  judge  granting  the  permission,  the  adopter,  the  adopted, 
and,  in  a  proper  case,  also  by  the  person  who  granted  permission  for  the 
adoption,  the  notary  and  two  witnesses  authenticating  it. 

1758  par.  2,  1760,  277. 

Art.  281.  After  the  instrument  of  adoption  shall  have  been  legally 
executed,  the  adopter  and  the  adopted  acquire  respectively  the  rights 
and  obligations  of  father  or  mother  and  legitimate  children.  If  the 
adopted  should  be  under  the  power  of  a  tutor  or  curator,  he  shall  be 
relieved  therefrom,  and  shall  come  under  the  paternal  power  of  the 
adopting  father,  or  under  the  tutorship  or  curatorship  of  the  adopting 
mother,  in  a  proper  case. 

250,  251,  253,  256  to  258,  261,  411  Nos.  7  and  8,  262  to  264,  117 
par.  2,  61  No.  4,  140  No.  11,  288,  291,  295,  296,  298  et  seq.y  278, 
282,  283,  286,  287  par.  2. 


8o 

Art.  282.  The  adopted  child  may  inherit  from  the  father  by  testa- 
ment, in  the  event  that  there  be  no  legitimate  ascendants,  and  if  there 
be  such  he  shall  be  entitled  only  to  one-tenth  of  the  property;  but  the 
adopter  can  in  no  case  be  the  heir  of  the  adopted. 

272,  287  par.  2,  1240. 

Art.  283.  The  adopting  father  and  mother  may  appoint  a  tutor  or 
curator  by  testament  or  by  an  act  inter  vivos  to  the  adopted,  in  accord- 
ance with  the  provisions  of  article  450. 

Art.  284.  The  adoption  cannot  be  revoked  without  cause.  Causes  for 
the  revocation  of  the  adoption  are  the  same  as  those  which  serve  as  a 
basis  for  the  disinheritance  of  a  forced  heir. 

1265  et  seq. 

Art.  285.  If  the  person  adopted  should  not  agree  as  to  the  correctness 
of  the  cause  upon  which  the  revocation  of  the  adoption  is  based,  such 
revocation  shall  not  be  valid  if  the  cause  be  not  proved  judicially. 

Art.  286.  The  adoption  having  been  validly  revoked,  the  person  and 
the  property  of  the  individual  adopted  shall  return  to  the  power  or 
guardianship  of  the  person  upon  whom  the  former  depended  before  the 
adoption,  if  said  adopted  person  should  not  have  the  free  administra- 
tion of  his  property. 

Art.  287.  The  adoption  ceases  by  the  death  of  the  adopter  or  of  the 
adopted. 

It  also  ceases  by  the  fact  of  the  adopting  father  or  mother  having  legiti- 
mate descendants. 

272. 


8i 

TITLE  XIV. 
Of  Paternal  Power. 

Art.  288.  Paternal  power  is  the  aggregate  of  rights  which  the  law 
gives  a  legitimate  father  over  his  non-emancipated  children. 

These  rights  do  not  belong  to  the  mother. 

Children  of  any  age,  not  emancipated,  are  called  children  of  the  family, 
and  the  father  with  relation  to  them,  father  of  the  family  (  pater  familias) . 

250,  253,  258,  262,  et  seq.    53  of  law  153  of  1887. 

Art.  289.  Legitimation  puts  an  end  to  the  guardianship  under  which 
the  legitimated  person  was,  and  gives  the  father  making  the  legitimation 
paternal  power  over  a  minor  under  twenty-one  years  of  age,  not  quali- 
fied as  to  age. 

236. 

Art.  290.  The  paternal  power  does  not  extend  to  the  child  who  dis- 
charges a  public  office  or  trust,  in  the  acts  which  he  executes  by  reason 
of  his  office  or  trust.  Public  employees,  under  age,  are  considered  as  of 
legal  age  in  what  concerns  their  offices. 

294,  1504,  par.  3. 

Art.  291.  A  father  enjoys  the  usufruct  of  all  the  property  of  a  son  of 
the  family,  excepting  the  following : 

1.  The  property  acquired  by  the  son  in  the  exercise  of  any  employ- 
ment, of  any  liberal  profession,  of  any  industry,  of  any  mechanical  trade. 

2.  The  property  acquired  by  the  son  as  a  donation,  inheritance,  or 
legacy,  when  the  donor  or  testator  shall  have  expressly  stipulated  that 
the  son  and  not  the  father  should  have  the  usufruct  of  such  property. 

316,  296,  442. 

3.  The  inheritances  or  legacies  which  may  have  passed  to  the  son  by 
reason  of  the  incapacity  or  unworthiness  of  the  father,  or  by  reason  of 
the  latter  having  been  disinherited. 

The  property  included  under  No.  1  forms  the  professional  or  industrial 
peculium  of  the  son;  that  in  which  the  son  has  the  ownership  and  the 
father  the  right  of  usufruct,  forms  the  ordinary  adventitious  peculium; 
that  comprised  under  Nos.  2  and  3,  the  special  adventitious  peculium. 


82 

The  legal  usufruct  of  the  father  of  a  family  is  that  granted  him  by  law. 
292,  294,  2489  par.  3,  2502  No.  4. 

Art.  292.  The  father  enjoys  the  legal  usufruct  only  until  the  emanci- 
pation of  the  child. 

312. 

Art.  293.  The  father  of  the  family  is  not  obliged,  by  reason  of  the 
legal  usufruct,  to  give  the  bond  or  security  that  usufructuaries  generally 
must  give  for  the  preservation  and  restitution  of  the  thing  subject  to  the 
usufruct. 

834- 

Art.  294.  The  son  of  the  family  shall  be  considered  as  emancipated 
and  qualified  as  to  age  for  the  administration  and  enjoyment  of  his  pro- 
fessional or  industrial  peculium. 

312,  339,  290,  301,  303,  432,  1504,  par.  3. 

Art.  295.  The  father  administers  the  property  of  the  son,  in  which  the 
law  grants  him  the  usufruct. 

He  does  not  have  this  administration  in  the  things  donated,  inherited 
or  bequeathed  under  the  condition  that  the  father  shall  not  administer 
them. 

Nor  in  the  inheritances  or  legacies  which  may  have  passed  to  the  son 
by  reason  of  the  incapacity  or  unworthiness  of  the  father,  or  on  account 
of  the  latter  having  been  disinherited. 

291,  316,  296,  442,  434,  1637. 

Art.  296.  The  condition  that  the  father  shall  not  administer,  imposed 
by  the  donor  or  testator,  is  not  understood  to  deprive  him  of  the  usufruct, 
nor  is  it  understood  that  the  deprivation  of  the  usufruct  takes  the  admin- 
istration from  him,  unless  either  be  stipulated  by  the  donor  or  testator. 

291  par.  2,  295,  316,  442. 

Art.  297.  The  father  of  the  family,  who,  as  such,  administers  property 
belonging  to  the  son,  is  not  obliged  to  prepare  a  formal  inventory  thereof, 
as  long  as  he  does  not  contract  a  new  marriage ;  but  if  he  does  not  make 
a  formal  inventory  he  must  keep  a  detailed  description  of  said  property 
from  the  time  he  begins  the  administration  thereof. 

169. 


83 

Art.  298.  The  father  of  a  family  is  liable,  in  the  administration  of 
the  property  of  the  child,  to  the  extent  of  a  slight  fault. 

The  liability  of  the  father  towards  the  child  extends  to  the  prop- 
erty and  its  fruits,  in  such  property  of  the  son  in  which  he  enjoys  the 
administration  but  not  the  usufruct;  and  is  limited  to  the  property  in 
which  he  is  administrator  and  usufructuary. 

63,  pars.  3  and  4,  1604  par.  1. 

Art.  299.  There  shall  be  a  right  to  relieve  the  father  of  a  family  of  the 
administration  of  the  property  of  the  son,  if  he  shall  have  been  guilty  of 
fraud  or  habitual  grave  negligence. 

The  father  shall  lose  the  administration  of  the  property  of  the  child 
whenever  the  paternal  power  is  suspended  by  judicial  decree. 

63  par.  2,  310,  311,  315,  438,  447,  456  par.  2. 

Art.  300.  If  the  father  should  not  have  the  administration  of  all  or 
part  of  the  ordinary  or  special  adventitious  peculium,  the  child  shall  be 
given  a  curator  for  such  administration. 

But  if  the  father  should  be  relieved  of  the  adminstration  of  that  prop- 
erty of  the  son  in  which  the  law  gives  him  the  usufruct,  he  shall  not 
thereby  cease  to  be  entitled  to  the  net  fruits,  after  deducting  the  cost  of 
administration. 

434,  438  par.  2,  296. 

Art.  301.  The  acts  and  contracts  of  a  son  not  authorized  by  the 
father,  or  by  the  adjoined  curator  in  the  case  of  the  preceding  article,  shall 
obligate  exclusively  his  professional  or  industrial  peculium. 

But  he  cannot  take  money  on  interest,  nor  purchase  on  time  (except- 
ing in  the  ordinary  affairs  connected  with  said  peculium)  without  the 
written  authority  of  the  father.  And  should  he  do  so,  he  shall  not  be 
bound  by  these  contracts,  except  to  the  extent  of  the  benefit  he  may 
have  derived  therefrom. 

261,  294,  1504  par.  3,  2262,  183,  1767,  192,  1776  par.  2. 

Art.  302.  The  acts  and  contracts  which  the  son  of  a  family  may  enter 
into  outside  of  his  professional  or  industrial  peculium,  and  which  the 
father  shall  authorize  or  ratify  in  writing,  bind  the  father  directly  and 
the  son  subsidiarily,  to  the  extent  of  the  benefit  which  the  latter  may 
have  derived  from  said  acts  or  contracts. 

187,  1767.     _  .     .  . 


84 

Art.  303.  The  real  property  of  the  son,  even  though  belonging  to  his 
professional  peculium,  cannot  be  alienated  nor  mortgaged  without  the 
authority  of  the  judge,  after  an  investigation  as  to  the  necessity  therefor. 

483,  189,  1810. 

Art.  304.  The  father  cannot  donate  any  portion  of  the  property  of  the 
son,  nor  give  it  in  lease  for  long  terms,  nor  accept  or  repudiate  an  in- 
heritance deferred  to  the  son,  except  in  the  form  and  with  the  limita- 
tions imposed  upon  tutors  and  curators. 

491,  492,  496,  486,  487,  1813,  1307  par.  2. 

Art.  305.  Whenever  the  son  of  the  family  shall  be  obliged  to  litigate 
as  a  complainant  against  his  father,  it  shall  be  necessary  for  him  to 
obtain  the  consent  of  the  judge,  and  the  latter,  in  granting  it,  shall  ap- 
point a  curator  ad  litem. 

435,  583. 

Art.  306.  The  son  of  a  family  cannot  appear  in  court,  as  plaintiff  or 
complainant  against  a  third  person,  unless  he  be  authorized  or  repre- 
sented by  the  father. 

If  the  father  of  a  family  shall  deny  his  consent  to  the  son  for  the  civil 
action  which  the  son  desires  to  bring  against  a  third  person,  of  if  he  be 
disqualified  from  giving  it,  the  judge  may  supply  it,  and  in  doing  so 
shall  appoint  a  curator  ad  litem  for  the  son. 

435,  583,  181,  188. 

Art.  307.  In  the  civil  actions  against  the  son  of  a  family,  the  plaintiff 
must  address  himself  to  the  father,  in  order  that  he  may  authorize  or 
represent  the  son  in  the  litigation. 

If  the  father  were  unable  or  unwilling  to  give  his  authority  or  to  repre- 
sent the  son,  the  judge  may  supply  it  and  appoint  a  curator  ad  litem  for 
the  son. 

Art.  308.  The  paternal  intervention  shall  not  be  necessary  to  pro- 
ceed criminally  against  the  son ;  but  the  father  shall  be  obliged  to  furnish 
him  the  assistance  he  may  require  for  his  defense. 

181. 

Art.  309.  The  son  of  a  family  does  not  require  the  paternal  authority 
to  dispose  of  his  property  by  a  testamentary  act  which  is  to  be  effective 
after  his  death. 

184,  1 06 1,  last  par. 


85 

Art.  310.  The  paternal  power  is  suspended  by  the  prolonged  loss  of 
reason  of  the  father,  by  the  father  being  interdicted  from  administering 
his  own  property,  and  by  the  long  absence  of  the  father,  entailing 
grave  damage  to  the  interests  of  the  son,  which  the  absent  father  does 
not  provide  for. 

119,  311,  312. 

Art.  311.  The  suspension  of  the  paternal  power  must  be  decreed  by 
the  judge  after  an  investigation  of  the  matter,  and  after  the  relatives  of 
the  son  and  the  defender  of  minors  have  been  heard. 

315,  61,  456.  par.  2. 


86 

TITLE  XV. 

Of  Emancipation. 

Art.  312.  Emancipation  is  an  act  which  puts  an  end  to  the  paternal 
power.     It  may  be  voluntary,  legal,  or  judicial. 

Art.  313.  Voluntary  emancipation  is  effected  by  a  public  instrument, 
in  which  the  father  declares  that  he  emancipates  the  adult  son  and  the 
son  consents  thereto. 

An  emancipation  shall  not  be  valid  if  it  be  not  authorized  by  the  judge 
after  an  investigation  of  the  matter. 

1758,  1760. 

Art.  314.  Legal  emancipation  takes  place — 

1.  By  the  natural  death  of  the  father.* 

2.  By  the  marriage  of  the  son. 

3.  By  the  son  having  reached  the  age  of  twenty-one  years. 

4.  By  a  decree  which  gives  the  possession  of  the  property  of  the  father 
who  has  disappeared. 

341,  99,  100. 

Art.  315.  Judicial  emancipation  is  effected  by  a  decree  of  a  judge : 

1.  When  the  father  habitually  mistreats  the  son,  to  the  extent  of 
endangering  his  life  or  causing  him  serious  injury. 

262. 

2.  When  the  father  has  abandoned  the  son. 

266. 

3.  When  the  depravity  of  the  father  renders  him  incapable  of  exercis- 
ing the  paternal  power. 

4.  When  by  a  judicial  decision,  which  has  become  res  judicata,  the 
father  has  been  convicted  of  a  crime  to  which  is  affixed  the  penalty  of 
four  years  of  reclusion,  or  another  equal  or  greater  penalty. 

586,  No.  9. 

In  the  four  preceding  cases  the  judge  may  proceed  on  the  petition  of 
any  relative  by  consanguinity  of  the  son,  and  even  ex  proprio  motu. 

*  Art.  266,  No.  1,  of  the  Code  of  Chile  says;  "  By  the  natural  or  civil  death Jof  the 
father,  and  by  the  civil  death  of  the  son." 


37 

The  emancipation  shall  take  place  notwithstanding  any  pardon  which 
may  be  granted,  unless  in  the  pardon  the  preservation  of  the  paternal 
power  shall  be  expressly  included. 

310,  311,  265,  266,  267,  438,  447. 

Art.  316.  When  a  donation  is  made  to  the  son,  or  he  is  left  an  inheri- 
tance or  legacy  under  the  condition  of  obtaining  his  emancipation,  the 
father  shall  not  have  the  usufruct  of  such  property,  and  the  condition 
shall  thus  be  understood  to  have  been  complied  with. 

Nor  shall  he  have  the  administration  of  such  property  if  the  donor  or 
testator  should  so  expressly  stipulate. 

291  No.  2,  292,  296,  442. 

Art.  317.  Any  emancipation,  after  it  has  taken  place,  is  irrevocablej 
even  by  reason  of  ingratitude. 


88 


TITLE  XVI. 

Of  Natural  Children. 


(This  Title  has  been  expressly  repealed  by  art.  65  of  law  153  of  1887, 
and  substituted  by  paragraphs  4  and  6  Of  Persons,  Second  Part  of  said 
law.) 


TITLE  XVII. 

Of  the  Obligations  and  Rights  of  Parents  and  Natural  Children. 

(This  Title  has  also  been  expressly  repealed  by  art.  65  of  law  153  of 
1887,  and  substituted  by  par.  5  Of  Persons,  Second  Part  of  said  law.) 


TITLE  XVIII. 

Of  Disputed  Maternity. 

Art.  335.  Maternity,  that  is,  the  fact  of  a  woman  being  the  real 
mother  of  a  child  which  passes  as  her  own,  may  be  impugned,  by  proving 
false  birth,  or  the  substitution  of  the  pretended  child  for  the  real  one. 
The  following  have  the  right  to  impugn  it : 

1 .  The  husband  of  the  alleged  mother  and  the  alleged  mother  herself, 
to  not  recognize  the  legitimacy  of  the  child. 

2.  The  real  legitimate  father  and  mother  of  the  child,  to  confer  upon 
him,  or  upon  his  legitimate  descendants,  family  rights  in  their  own. 

3.  The  real  mother  to  demand  support  of  her  child. 

337,  248,  216  et  seq.     58  and  75  of  law  153  of  1887. 


89 

Art.  336.  The  persons  mentioned  in  the  preceding  article  cannot 
impugn  the  maternity  after  the  expiration  of  ten  years,  reckoned  from 
the  date  of  the  birth. 

Nevertheless,  in  the  event  of  some  fact  unexpectedly  coming  to  light 
which  is  incompatible  with  the  putative  maternity,  the  right  of  action 
may  subsist  or  be  renewed  for  a  period  of  two  years  counted  from  the 
date  of  the  proved  revelation  of  the  fact. 

217  et  seq. 

Art.  337.  This  right  of  action  shall  also  be  granted  to  any  other  per- 
son actually  prejudiced  by  the  putative  maternity  in  hisjrights  to  the 
testamentary  or  intestate  succession,  of  the  alleged  father  or  mother. 

This  right  of  action  shall  expire  sixty  days  from  the  date  upon  which 
the  complainant  shall  have  heard  of  the  death  of  said  father  or  mother. 

After  the  expiration  of  two  years  ignorance  of  the  death  cannot  be 
pleaded. 

219  et  seq. 

Art.  338.  No  one  who  shall  have  had  part  in  the  fraud  of  fictitious 
birth  or  substitution,  shall  be  benefited  in  any  manner  by  the  discovery 
of  the  fraud,  not  even  to  exercise  the  rights  of  paternal  power  over  the 
child,  or  to  demand  support  of  him,  or  to  succeed  to  his  property  by 
reason  of  his  death. 

418,  1515  par.  2,  2343  par.  2. 


90 

TITLE  XIX. 

Of  Qualification  as  to  Age. 

Art.  339.  The  qualification  as  to  age  is  a  privilege  granted  to  a  minor 
in  order  that  he  may  execute  all  the  acts  and  contract  all  the  obligations 
of  which  persons  over  twenty-one  years  of  age  are  capable,  excepting 
such  acts  or  obligations  for  which  he  is  expressly  declared  incapable  by 
a  law. 

289,  525,  34  par.  2,  344,  345,  588,  1329,  1777. 

Art.  340.  Married  males,  who  shall  have  attained  the  age  of  eighteen 
years,  obtain  qualification  as  to  age  by  operation  of  law. 

In  the  other  cases  the  qualification  as  to  age  is  granted  by  the  com- 
petent judge,  on  the  petition  of  the  minor. 

Art.  341.  Qualification  as  to  age  cannot  be  obtained  from  a  judge  by 
women  living  under  the  marital  power,  even  though  they  should  be 
separate  in  property ;  nor  by  children  of  a  family ;  nor  by  persons  under 
eighteen  years  of  age,  even  though  they  shall  have  been  emancipated. 

288,  par.  3. 

Art.  342.  The  judge  cannot  grant  the  qualification  as  to  age  without 
having  heard  thereon  the  relatives  of  the  minor  requesting  it,  his  curator 
and  the  defender  of  minors. 

61. 

Art.  343.  The  qualification  as  to  age  puts  an  end  to  the  guardian- 
ship of  the  minor. 

432. 

i 

Art.  344.  This  qualification  does  not  extend  to  political  rights. 
34,  par.  2. 

Art.  345.  A  minor  who  has  been  qualified  as  to  age  cannot  alienate  or 
mortgage  his  real  property,  nor  approve  the  accounts  of  his  tutor  or 
curator,  without  judicial  authorization;  nor  shall  such  authority  be 
granted  without  an  investigation  into  the  matter. 

The  alienation  of  such  real  property,  authorized  by  the  judge,  shall 
take  place  at  a  public  sale. 

34  par.  2,  483  etseq.,  1777,  1810. 


*      9i 

TITLE  XX. 

Of  Proofs  of  the  Civil  Status. 

Chapter  i. 

Preliminary  Provisions. 

Art.  346.  Civil  status  is  the  quality  of  an  individual  in  so  far  as  it 
qualifies  him  to  exercise  certain  rights  and  contract  certain  civil  obli- 
gations. 

20  of  law  153  of  1887. 

Art.  347.  Such  quality  must  appear  in  the  register  of  civil  status,  the 
records  upon  which  shall  be  evidence  of  the  respective  status. 

367,407.     22  of  law  57  of  1887.     79  of  law  153  of  1887. 

Art.  348.  Notaries  public  in  the  States  and  in  the  Territories,  or  the 
officials  called  upon  to  take  their  places,  are  charged  with  the  keeping  of 
the  civil  status  of  persons.* 

What  is  said  in  this  Title  regarding  notaries,  applies  to  those  who  must 
discharge  their  functions  in  the  Territories. 

Art.  349.  The  following  entries  shall  be  made  in  said  register: 

1.  Births. 

2.  Deaths. 

3.  Marriages. 

4.  The  acknowledgment  of  natural  children. 

5.  Adoptions. 

Chapter  2. 

Register  of  Births. 

Art.  350.  In  the  Territories  every  father  of  a  family  in  whose  house  a 
birth  occurs  is  obliged  to  inform  the  proper  notary  or  corregidor 
thereof  not  later  than  eight  days  following  that  of  the  birth  of  the  person. 

352,  385,  386,  387,  354.  355,  372. 

Art.  351.  He  must  state  to  the  notary,  in  the  presence  of  two  wit- 

*  Undoubtedly  this  should  be  " .  .  .  charged  with  the  keeping  of  the  register  of 
thecivil  status." 


92 

nesses :  i.  On  what  day  the  birth  occurred ;  2.  The  sex  and  the  name  of 
the  new  born;  3.  Who  is  the  mother  and  her  civil  status,  if  the  mother 
can  appear;  4.  Who  is  the  father,  if  he  be  known  or  can  appear,  and  also 
who  are  the  grandparents,  paternal  as  well  as  maternal. 

Art.  352.  The  person  in  whose  house  a  new  born  child  is  abandoned, 
is  obliged  to  comply,  in  so  far  as  possible,  with  the  provisions  of  the  pre- 
ceding articles. 

385,  386. 

Art.  353.  The  notary  shall  draw  up  the  record  of  birth,  shall  read  it 
to  the  persons  interested  and  to  the  witnesses,  and  all  of  them  shall  sub- 
scribe thereto.  The  notary  shall  issue  a  certificate  of  said  record  free  of 
charge,  if  requested  so  to  do. 

374,  380. 

Art.  354.  The  death  of  a  new-born  child  before  the  declaration  of 
birth,  does  not  operate  as  an  exemption  from  the  obligation  of  having 
the  proper  records  made  upon  the  registers  of  birth  and  of  death. 

Art.  355.  If  the  birth  occurs  upon  a  voyage  or  in  a  place  where  the 
mother  does  not  have  her  domicile,  after  the  record  of  birth  shall  have 
been  made,  the  notary  making  it  must  transmit  a  copy  to  the  proper 
prefect  or  corregidor,  in  order  that  through  him  it  may  be  sent  to  the 
notary  of  the  domicile  of  the  mother,  so  that  it  may  be  copied  upon  the 
register  of  births  and  the  record  transmitted  filed. 

382.     • 

Chapter  3. 

Register  of  Deaths. 

Art.  356.  In  the  Territories  the  father  of  a  family  in  whose  house  a 
person  may  die  shall  communicate  the  death  to  the  notary  within 
thirty  days. 

358  et  seq.t  385,  386,  387. 

Art.  357.  The  notary  shall  enter  upon  the  proper  register  in  the 
presence  of  two  witnesses  a  record  in  which  shall  be  stated:  1.  The 
name  and  surname  of  the  deceased;  2.  The  day  and  hour  when  the 
death  may  have  occurred,  and  whether  it  was  natural  or  violent;  3. 
The  age,  the  domicile  and  the  status  of  the  deceased,  stating  the  name 
of  the  spouse,  if  married ;  4.  The  name  and  surname  of  the  father  and  of 
the  mother  of  the  deceased,  if  known;  5.  If  he  left  a  testament  or  not, 
how  and  before  whom  drawn. 


93 

The  relatives  or  neighbors,  or  the  persons  concerning  (que  conciernan) 
to  the  deceased  shall  appear  as  witnesses  in  preference  to  others.* 

372,  374- 

Art.  358.  Any  person  finding  a  corpse  outside  of  a  dwelling  or  in  a 
house  which  has  no  occupants  or  neighbors,  is  under  the  obligation  of 
giving  the  notice  referred  to  in  article  356,  either  to  the  notary,  judge- 
notary,  or  to  any  police  agent,  in  order  that  it  may  be  transmitted  to  the 
respective  notary. 

385,  386,  387. 

Art.  359.  In  the  event  of  the  death  of  any  person,  in  any  community, 
hospital,  barracks,  prison,  or  in  any  other  similar  institution,  notice 
shall  be  given  thereof  to  the  notary,  in  order  that  the  record  of  death  may 
be  entered  by  the  Chief,  Director,  or  Administrator  of  the  institution. 

Art.  360.  In  the  event  of  death  upon  a  vessel  which  navigates  in 
waters  belonging  to  the  Union,  it  shall  be  the  obligation  of  the  person 
in  command  of  the  vessel  to  give  notice  thereof  to  the  political  author- 
ity of  the  first  port  of  the  Union  at  which  the  vessel  touches,  in  order  that 
said  political  authority  may  direct  the  Registrar  in  the  place  of  the  resi- 
dence of  such  authority,  to  enter  the  record  of  death  upon  the  correspond- 
ing register. 

385,  386,  387,  382. 

Art.  361.  With  regard  to  those  dying  in  the  field  or  in  any  battle  or 
engagement,  it  is  the  obligation  of  the  commanding  general,  line  or  field 
officer,  or  of  any  one  having  the  command  of  the  troops,  if  the  chief,  com- 
mander, or  officer  should  be  in  the  service  of  the  Union,  to  give  notice  to 
the  respective  notary  of  the  deaths  occurring  among  the  forces  which  any 
of  them  command,  in  order  that  said  official  may  make  the  proper  entries 
upon  the  register  of  deaths. 

Art.  362.  The  notaries  and  prefects  or  corregidores-notaries,  shall 
give  the  persons  interested  a  statement  showing  that  the  record  of  death 
in  question  has  been  made,  in  order  that  they  may  present  them  to  the 
director  or  porter  of  the  cemetery  where  the  body  is  to  be  interred. 

363- 

Art.  363.  In  no  cemetery,  whether  public  or  private,  shall  a  body  be 
given  sepulture  without  the  statement  referred  to  in  the  preceding 
article  having  been  presented  to  the  gatekeeper  or  gravedigger. 

*  The  corresponding  article  of  the  Code  of  Cundinamarca,  382,  states:  ".     .     . 
or  the  persons  acquainted  {que  conocieran)  with  the  deceased." 


94 

Persons  violating  this  provision  shall  be  punished  by  the  proper  corre- 
gidor  or  prefect  by  the  imposition  of  fines  from  one  to  ten  pesos,  or  con- 
finement from  one  to  three  days. 

Chapter  4. 

Register  of  Marriages. 

Art  364.  The  corregidor  in  the  Territories  before  whom  a  marriage  is 
celebrated  is  obliged  to  transmit  to  the  respective  notary  the  papers 
drawn  up  for  the  celebration  of  the  contract,  and  the  notary,  before  fil- 
ing them  in  his  protocol,  as  prescribed  in  article  137  of  this  Code,  shall 
make  the  proper  record  upon  the  register  of  births,  stating : 

1.  The  date  of  the  contract. 

2.  The  name  of  the  official  who  authorized  it. 

3.  Those  of  the  contracting  parties,  their  places  of  residence,  age;  and 

4.  The  names  of  witnesses  who  were  present  thereat.  This  entry  shall 
be  signed  by  the  notary  only. 

If  the  corregidor  acts  in  the  stead  of  the  notary,  the  record  of  the  mar- 
riage shall  be  entered  upon  the  register  in  his  office,  and  the  papers  shall 
be  filed  in  the  protocol. 

372,  374,  367- 

Art.  365.  The  certificates  of  marriages  celebrated  by  Colombians  in 
any  of  the  States  of  the  Union,  or  in  a  foreign  country,  shall  be  copied 
in  full  upon  the  Register,  and  shall  be  authorized  by  the  signature  of  the 
notary,  those  of  the  contracting  parties  and  two  witnesses. 

372,  374,  382. 

Art.  366.  Whenever  a  marriage  of  persons  is  celebrated  who  before 
or  at  the  time  of  marrying  may  have  acknowledged  a  child,  a  marginal 
note  of  the  legitimation  of  the  child  shall'  be  made  opposite  the  record  of 
his  birth;  but  the  absence  of  this  requisite  cannot  be  opposed  against 
his  quality  of  legitimation. 

407,  408  par.  2,  369,  375. 

Art.  367.  When  the  legal  celebration  of  a  marriage  should  result  from 
a  civil  or  criminal  proceeding,  and  it  should  not  be  entered  upon  the 
register,  or  if  so,  the  entry  is  inexact,  a  copy  of  the  final  decision  shall  be 
entered  thereupon  which  shall  serve  as  proof  of  the  marriage. 

370,  407,  375. 


95 

Chapter  5. 

Register  of  the  Acknowledgment  of  Natural  Children. 

Art.  368.  When  a  father  shall  acknowledge  a  natural  child  in  the 
record  of  birth,  it  shall  be  sufficient  that  he  sign  the  respective  record,  as 
evidence  of  the  acknowledgment. 

52  par.  2,  318,  1758,  1760.     7  of  law  57  of  1887.      56  and  58,  No. 
5,  of  law  153  of  1887. 

Art.  369.  The  notary  or  corregidor  before  whom  an  instrument  ac- 
knowledging a  natural  child  is  drawn,  shall  make  and  sign  an  entry  upon 
the  register  stating:  the  date  of  the  instrument,  the  names  of  the  parties 
thereto,  that  of  the  child  acknowledged,  his  age,  his  place  of  birth  and 
the  name  of  the  attesting  witnesses  to  the  instrument. 

In  the  margin  of  the  record  of  the  birth  of  the  child  acknowledged  a 
note  shall  be  made  citing  the  instrument  of  acknowledgment. 

If  the  birth  shall  have  been  recorded  in  another  notarial  office  or  cor- 
regimiento,  the  notary  authenticating  the  acknowledgment  shall  give 
notice  thereof  to  the  one  where  the  birth  is  registered,  in  order  that  the 
note  referred  to  in  the  preceding  paragraph  may  be  made. 

372,  374,  375,  366,  407,  408,  par.  2. 

Art.  370.  If  the  acknowledgment  should  be  made  by  virtue  of  a 
judicial  proceedings,  the  prefect  taking  cognizance  of  the  matter  shall 
advise  the  respective  notary  in  order  that  he  may  make  the  record  upon 
the  register. 

319,  367,  407.     21  of  law  57  of  1887.     55  and  66  of  law  153  of 

1887. 

Chapter  6. 

Register  of  Adoptions. 

Art.  371.  The  notary  before  whom  an  instrument  of  adoption  may  be 
executed  shall  make  and  sign  a  record  thereof  upon  the  register,  in  the 
same  terms  as  established,  for  a  case  of  acknowledgment,  in  article  369. 

372,  374- 

Chapter  7. 

General  Provisions. 

Art.  372.  Records  upon  the  register  of  civil  status  shall  be  made  the 
same  day  that  the  notice  is  given  or  information  is  received  of  the  event ; 


96 

the  entries  shall  be  made  one  after  the  other,  without  leaving  any 
blank  spaces  between  the  same,  without  abbreviations  or  figures,  and 
without  inserting  anything  not  pertinent  thereto. 

Art.  373.  At  the  beginning  of  each  entry  in  the  register  there  shall  be 
placed,  in  large  letters,  the  name  and  surname  of  the  new  born,  deceased, 
contracting  party  or  legitimated  child,  as  the  case  may  be. 

Art.  374.  The  entry  having  been  made  upon  the  register,  the  notary 
shall  read  it  to  the  persons  interested  or  to  their  representatives  and  to 
the  witnesses ;  any  errors  which  may  have  been  made  shall  be  corrected 
at  the  foot,  and  thereupon  all  shall  subscribe  thereto. 

407,  353,  364  No.  4,  365,  369. 

Art.  375.  When  a  new  record  is  made  which  bears  a  relation  to 
another,  it  shall  be  made  upon  the  day  of  the  date  of  the  new  entry,  and 
not  in  the  margin  of  the  former  one. 

366,  367,  369  pars.  2  and  3,  381,  407,  408,  par.  2. 

Art.  376.  At  the  end  of  each  book  such  number  of  pages  shall  be  set 
aside  as  are  deemed  sufficient  to  form  an  alphabetical  index  of  the  names 
of  the  persons  to  whom  the  entries  in  each  register  refer,  with  a  reference 
to  the  page  upon  which  they  appear.  This  index  shall  be  kept  simul- 
taneously with  the  register. 

Art.  377.  When  it  shall  be  desired  to  register  a  birth  or  a  death  which 
has  occurred  a  year  before,  it  is  necessary  that  the  persons  interested 
establish  the  fact  by  two  witnesses,  who  shall  affirm  it  before  the 
notary,  under  oath,  and  that  they  give  exact  information  of  the  date,  or 
at  least  of  the  month  and  year  when  it  occurred. 

381,  395- 

Art.  378.  At  the  end  of  every  month  a  memorandum  shall  be  made 
in  the  respective  registers,  of  the  number  of  entries  made.  This  memo- 
randum shall  be  subscribed  by  the  respective  prefect  and  notary. 

388,  389- 

Art.  379.  Powers  of  attorney  and  other  documents  which  must  be 
attached  to  the  certificates,  shall  be  signed  by  the  notary  and  the  wit- 
nesses, and  shall  be  filed  together  with  the  registers. 

Art.  380.  Any  person  may  request  certificates  of  said  entries,  upon 
the  payment  of  twenty  cents4  as  the  only  charge. 

353,  362,  363. 


97 

Art.  381.  In  the  event  of  any  entry  having  been  omitted  from  the 
registers,  the  evidence  submitted  thereon  shall  be  admitted,  and  upon 
being  declared  sufficient  by  the  judge,  the  omission  shall  be  repaired  by 
making  the  entry  in  the  place  corresponding  to  the  date  on  which  it  is 
made,  and  making  a  reference  in  the  margin  of  the  place  where  it  was 
omitted. 

377,  395,  375- 

Art.  382.  Records  of  the  registry  of  civil  status,  made  in  another 
State  of  the  Union,  or  in  a  foreign  country,  are  valid  if  the  formalities 
required  in  the  State  or  country  where  they  were  made  were  observed,  or 
if  they  were  made  in  accordance  with  the  provisions  of  the  Civil  Code, 
before  a  diplomatic  or  consular  agent  of  the  Union,  j 

355,  360,  365- 

Art.  383.  All  the  registers  of  the  civil  status  of  persons  shall  be  kept  in 
the  offices  of  the  notaries,  for  which  purpose  the  prefects  or  corregidores 
shall  transmit  in  the  month  of  January  those  they  may  have  formed  in 
and  have  under  their  charge  from  the  preceding  year. 

The  notaries,  judges,  or  corregidores  are  responsible  for  any  altera- 
tions in  the  said  registers. 

378,384,389,390,  391. 

Art.  384.  Any  alteration  or  falsification  of  the  records  of  civil  status, 
any  record  thereof  made  upon  a  loose  sheet,  or  in  any  other  manner  not 
upon  the  registers  provided  for  this  purpose,  entitles  the  persons  inter- 
ested to  demand  compensation  for  the  loss  and  damage  they  may  suffer, 
without  prejudice  to  the  penalty  which  the  Penal  Code  affixes  to  the 
crime  of  falsity. 

378,  383,  388,  389- 

Art.  385.  In  addition  to  the  persons  mentioned  in  articles  350,  352, 
356,  358,  359,  360,  and  36 r,  the  immediate  relatives  of  the  new  born,  or 
of  the  deceased  in  a  proper  case,  the  midwives,  the  ministers,  sacristans, 
sextons,  and  other  persons  who,  by  reason  of  their  occupation  or  pro- 
fession, may  have  had  knowledge  of  the  birth  or  death  of  a  person,  are 
also  obliged  to  give  the  notice  prescribed  in  said  articles. 

Art.  386.  Police  agents  who  shall  in  any  manner  receive  information  of 
the  birth  or  death  of  a  person  in  the  district  or  section  in  which  they  per- 
form their  duties,  are  obliged  to  give  the  notice  indicated  to  the  respec- 
tive notary,  or  to  the  prefect  or  corregidor,  either  in  person,  or  see  that  it 
be  given  by  the  person  that  should  do  so. 


98 


Art.  387.  When  the  notary  shall  be  absent  from  the  seat  of  the  dis- 
trict of  the  prefect  or  corregidor.  in  the  discharge  of  the  duties  of  his 
office,  the  notice  referred  to  in  the  two  preceding  articles  shall  be  given 
to  the  prefect  or  corregidor ;  who  shall  order  the  sepulture,  if  a  death  be 
in  question,  and  take  the  proper  memoranda  in  the  case,  and  transmit 
them  to  the  notary  upon  his  return,  in  order  that  the  latter  may  make  the 
proper  entry  upon  the  respective  register. 

Art.  388.  The  prefect  or  corregidor  shall  see  to  it  that  the  registers  of 
births  and  deaths  are  kept  faithfully  and  properly,  having  the  power  for 
such  purpose  to  compel  the  persons  or  public  employees  obliged  to  give 
the  notices  referred  to  in  the  preceding  articles,  by  the  imposition  of 
fines  from  one  to  ten  pesos,  or  imprisonment  not  to  exceed  three  days, 
to  comply  with  the  duty  prescribed. 

378,  384. 

Art.  389.  The  registers  of  the  civil  status  of  persons  must  be  folioed 
and  rubricated  on  each  sheet  by  the  prefect,  who  shall  in  addition  place 
at  the  beginning  thereof  a  note  of  the  number  of  sheets  each  contains, 
authorized  by  his  signature. 

378,  384..  383- 

Art.  390.  During  the  first  six  days  of  each  month,  the  notaries  and 
judge-notaries  shall  transmit  to  the  prefect  a  statement  showing  the 
number  of  births,  deaths,  marriages,  and  persons  legitimated,  recorded 
upon  the  registers  of  the  civil  status,  during  the  preceding  month,  stating 
so  many  males,  so  many  females. 

39i- 

Art.  391.  During  the  month  of  January  of  each  year  the  prefects  or 
corregidores  shall  prepare  and  transmit  to  the  Department  of  the  In- 
terior and  Foreign  Affairs,  for  publication  in  the  ' '  Diario  Oficial,"  a  state- 
ment showing  the  movement  of  the  population  in  each  one  of  the  Terri- 
tories during  the  year  immediately  preceding,  in  accordance  with  the 
data  they  should  have  received,  according  to  the  provisions  of  the  pre- 
ceding article. 

Art.  392.  The  authenticity  and  correctness  of  the  aforementioned 
documents  shall  be  presumed,  if  in  proper  form. 


66,  pars.  2  and  3. 

Art.  393.  The  aforementioned  documents  may  be  rejected,  even 
though  it  is  evident  that  they  are  authentic  and  have  no  corrections 
or  erasures,  by  proving  the  lack  of   personal  identity,  that   is,  the  fact 


99 

that  the  person  to  whom  the  document  refers  and  the  person  to  whom  it 
is  intended  to  apply,  are  not  one  and  the  same  person. 

Art.  394.  The  aforementioned  documents  are  evidence  of  the  declara- 
tions made  by  the  parties  contracting  marriage,  by  the  parents  or  other 
persons  in  the  respective  cases ;  but  they  do  not  guarantee  the  veracity 
of  such  declaration  in  any  of  its  parts. 

They  may,  therefore,  be  impugned,  by  proving  that  the  declaration  in 
the  point  in  question  was  false. 

342  par.  2,  1759.     75,  par.  2,  of  law  153  of  1887. 

Art.  395.  The  want  of  the  documents  referred  to  may  be  supplied  in  a 
necessary  case  by  other  authentic  documents,  by  depositions  of  witnesses 
who  may  have  been  present  at  the  acts  from  which  the  civil  status  in 
question  resulted,  and  in  the  absence  of  such  proof,  by  the  well  known 
possession  (notoria  posesion)  of  such  civil  status. 

377,  381,  1758. 

Art.  396.  The  well  known  possession  of  the  state  of  marriage  consists, 
principally,  in  the  supposed  spouses  having  treated  each  other  as  hus 
band  and  wife  in  their  social  domestic  relations ;  and  in  the  wife  having 
been  received    in  such  character    by  the  relatives,   connections   and 
friends  of  the  husband,  and  by  the  residents  of  her  domicile  in  general. 

Art.  397.  The  well  known  possession  of  the  status  of  a  legitimate 
child  consists  in  his  parents  having  treated  him  as  such,  providing  for  his 
education  and  establishment  in  a  suitable  manner,  and  presenting  him 
as  such  to  their  relatives  and  friends ;  and  in  that  the  latter  and  the  resi- 
dents of  his  domicile,  in  general,  shall  have  reputed  and  recognized  him 
as  the  legitimate  son  of  such  parents. 

Art.  398.  In  order  that  the  well  known  possession  of  the  civil  status 
be  received  as  proof  of  the  civil  status,  it  is  necessary  that  it  shall  have 
lasted  at  least  ten  years. 

33<5. 

Art.  399.  The  well  known  possession  of  a  civil  status  shall  be  proved 
by  a  number  of  trustworthy  witnesses  who  establish  it  in  an  incontro- 
vertible manner ;  especially  in  the  event  that  the  absence  of  the  respec- 
tive certificate,  or  the  loss  or  misplacement  of  the  register  in  which  the 
record  should  appear,  is  not  explained  and  proved  in  a  satisfactory  man- 
ner. 

Art.  400.  When  it  shall  be  necessary  to  specify  the  age  of  a  person, 
for  the  execution  of  acts  or  the  discharge  of  duties  which  require  a  cer- 
tain age,  and  it  should  not  be  possible  to  do  so  by  documents  or  testi- 
mony fixing  the  period  of  his  birth,  an  age  between  the  greatest  and 


IOO 

lowest  appearing  compatible  with  the  physical  development  and  aspect 
of  the  individual  shall  be  given  him. 

The  Prefect  or  Corregidor,  in  order  to  establish  the  age,  shall  hear  the 
opinion  of  physicians  or  other  qualified  persons. 

Art.  401 .  The  judicial  decision  declaring  the  legitimacy  of  a  child  true 
or  false  is  valid  not  only  with  regard  to  the  persons  who  have  partici- 
pated in  the  proceedings,  but  with  regard  to  all  persons,  with  relation  to 
the  effects  such  legitimacy  carries  with  it. 

The  same  rule  must  be  applied  to  the  decision  which  declares  a  dis- 
puted maternity  to  be  true  or  false. 

17,  404,  406. 

Art.  402.  In  order  that  the  decisions  referred  to  in  the  preceding 
article'tnay  produce  the  effects  designated  therein,  it  is  necessary — 

1.  That  they  partake  of  the  nature  of  res  judicata. 

2.  That  they  have  been  rendered  against  a  legitimate  contradicter. 

3.  That  there  has  been  no  collusion  in  the  proceedings. 

406,  403,  405. 

Art.  403.  A  legitimate  contradicter  in  the  question  of  paternity  is  the 
father  against  the  son,  or  the  son  against  the  father,  and  in  the  question 
of  maternity  the  son  against  the  mother,  or  the  mother  against  the  son. 

Whenever  the  paternity  of  a  legitimate  son  is  involved  in  the  question, 
the  father  must  take  part  in  the  proceedings,  under  the  penalty  of  nullity. 

Art.  404.  The  heirs  represent  the  legitimate  contradicter  who  may 
have  died  before  the  decision;  and  the  decision  rendered  in  favor  or 
against  any  of  them  benefits  or  prejudices  the  co-heirs,  who,  though  cited, 
should  not  appear. 

401. 

Art.  405.  Evidence  of  collusion  in  the  proceedings  is  not  admissible  if 
not  presented  within  five  years  after  the  decision. 

Art.  406.  No  prescription  or  decision  whatsoever,  between  whosoever 
it  may  have  been  pronounced,  may  be  opposed  against  the  person  pre- 
senting himself  or  herself  as  the  true  father  or  mother  of  one  who  passes 
as  the  son  of  others,  or  as  the  true  son  of  the  father  or  mother  who  does 
not  acknowledge  him. 

17,  401. 

Art.  407.  When  in  a  record  some  mistake  or  error  shall  have  been 
committed  to  which  attention  was  not  called  as  prescribed  in  article  374, 
an  application  shall  be  made  to  the  judge,  in  order  that,  with  a  hearing  of 
the  persons  interested,  the  mistake  or  error  be  coirected.  J^If  a  favorable 


IOI 

decision  should  be  rendered,  it  shall  be  inserted  in  the  respective  place 
of  the  register,  taking  into  consideration  the  date  of  the  insertion,  which 
shall  serve  as  a  record,  a  note  being  placed  in  addition  in  the  margin  of 
the  amended  entry.  The  certification  shall  prejudice  only  the  parties 
who  may  have  been  heard  in  the  proceedings. 

367,  375,  401. 

Art.  408.  The  Notary  before  whom  an  instrument  legitimating  a  child 
is  drawn  up,  in  accordance  with  the  Civil  Code,  shall  make  an  entry  upon 
the  register  of  legitimations,  stating :  the  date  of  the  instrument,  names 
of  the  parties  thereto,  name  of  the  legitimated  child,  his  age  and  place  of 
birth,  and  the  names  of  the  attesting  witnesses  to  the  instrument. 

In  the  margin  of  the  record  of  birth  of  the  legitimated  child  a  note  shal 
be  made  citing  the  instrument  of  legitimation. 

If  the  birth  of  the  legitimated  child  should  be  on  record  in  a  notarial 
office  other  than  that  in  which  the  legitimation  took  place,  the  notary 
authorizing  the  latter  shall  communicate  it  to  the  one  where  the  birth  is 
registered,  in  order  that  such  record  may  be  made  in  the  terms  of  the 

preceding  paragraph. 

» 
366,  369,  375. 

Art.  409.  If  in  order  to  establish  facts  relating  to  thejcivil  status  of 
persons,  prior  to  September  1,  1853,  it  should  be  necessary  to  have  copies 
of  the  records  of  birth  or  baptism,  death  or  marriage  entered  in  the  books 
which  were  kept  for  the  purpose  by  the  ministers  of  the  Catholic  faith, 
before  that  date,  the  Prefects  may,  at  the  petition  of  a  party,  order  that 
such  books  be  produced  for  the  purpose  of  comparing  the  certificate  or 
copy  requested,  availing  themselves,  with  this  end  in  view,  of  legal  com- 
pulsory process. 

22  of  law  57  of  1887.     79  of  law  153  of  1887. 

Art.  410.  The  register  of  the  civil  status  shall  be  kept  in  accordance 
with  the  forms  inserted  at  the  end  of  this  Code.       j  j^  ** 


102 


TITLE  XXI. 

Support  Due  by  Law  to  Certain  Persons. 

Art.  411.  Support  is  due: 

1.  The  spouse. 

2.  The  legitimate  descendants. 

3.  The  legitimate  ascendants. 

4.  A  woman  divorced  who  did  not  give  cause  therefor 

5.  The  natural  children  and  their  legitimate  posterity. 

6.  The  natural  parents. 

7.  The  adoptive  children. 

8.  The  adopting  parents. 

9.  The  legitimate  brothers  and  sisters. 

10.  The  person  who  made  a  large  and  valuable  donation  if  it  shall  not 
have  been  rescinded  or  revoked. 

The  action  of  the  donor  shall  be  directed  against  the  donee. 
Support  is  not  due  to  the  persons  herein  mentioned,  in  the  cases  in 
which  a  law  denies  it  to  them. 

1016,  No.  4.  1226,  No.  1.  1227,  e^e^.,  166,  224,  233,  251,  252,  253, 
260,  334,  1796,  No.  5.  21  of  law  57  of  1887.  62,  66,  71  etseq., 
of  law  153  of  1887. 

Art.  412.  The  general  rules  to  which  the  furnishing  of  support  is  sub- 
ject, are  the  following;  without  prejudice  to  the  special  provisions  which 
this  Code  contains  with  respect  to  certain  persons. 

Art.  413.  Support  is  divided  into  congruous  and  necessary. 

Congruous  support  is  that  which  enables  the  beneficiary  to  live  mod- 
estly in  a  manner  in  correspondence  with  his  social  position. 

Necessary  support  is  that  which  is  sufficient  to  sustain  life. 

Support,  whether  congruous  or  necessary,  comprises  the  obligation  of 
providing  the  beneficiary  under  twenty-one  years  of  age  with  primary 
education  and  instruction  in  some  profession  or  trade. 

334,  par.  2.     62,  par.  2,  of  law  153  of  1887. 

Art.  414.  The  persons  designated  in  numbers  1,  2,  3,  4,  and  10  of 
article  411  are  entitled  to  congruous  support,  excepting  in  the  cases  in 
which  such  support  is  expressly  limited  by  law  to  what  may  be  necessary 
for  subsistence ;  and  generally  in  the  cases  in  which  the  person  receiving 
support  shall  have  been  guilty  of  a  grave  injury  against  the  person  who 
owed  him  support. 


io3 

Congruous  support  is  also  due  in  the  case  of  article  330. 

In  the  case  of  an  atrocious  injury,  the  obligation  to  give  support  shall 
cease  entirely. 

For  the  purposes  of  this  article,  atrocious  injuries  are  grave  crimes 
and  those  light  crimes  which  consist  of  an  assault  upon  the  person  fur- 
nishing the  means  of  support.  Grave  injuries  are  other  light  crimes 
against  any  of  the  individual  rights  of  the  person  owing  support. 

1036,  1025,  1268,  1266. 

Art.  415.  Those  incapable  of  exercising  the  right  of  ownership  are 
not  so  to  receive  support. 

Art.  416.  He  who  has  a  right  to  claim  support  from  more  than  one  of 
the  persons  mentioned  in  the  subdivisions  of  article  411,  may  avail  him- 
self of  one  of  said  rights  only,  in  the  following  order  of  preference : 

In  the  first  place,  if  there  is  a  right  under  subdivision  10. 

In  the  second,  under  subdivisions  1  and  4. 

In  the  third,  under  subdivisions  2  and  5. 

In  the  fourth,  under  subdivisions  3  and  6. 

In  the  fifth,  under  subdivisions  7  and  8. 

There  shall  be  no  right  under  subdivision  9,  except  in  the  absence  of 
all  the  others. 

Among  a  number  of  ascendants  or  descendants  application  must  be 
made  to  the  nearest  relatives. 

Only  in  the  event  of  the  insufficiency  of  the  preferred  right  may 
recourse  be  had  to  another. 

Art.  417.  While  the  obligation  to  furnish  support  is  being  considered, 
the  judge  or  prefect  may  order  that  it  be  given  provisionally,  when  in  the 
proceedings  a  plausible  reason  therefor  is  apparent,  without  prejudice  to 
the  restitution,  if  a  decision  be  rendered  in  favor  of  the  person  of  whom 
support  was  claimed. 

This  right  of  restitution  shall  cease  when  the  plaintiff  shall  have 
brought  his  action  in  good  faith  and  with  a  plausible  ground  therefor. 

224,  233,  964,  par.  3. 

Art.  418.  In  the  event  of  fraud  for  the  purpose  of  obtaining  support, 
all  those  who  may  have  participated  in  said  fraud  shall  be  bound  in 
solido  to  make  restitution  and  compensation  for  damages. 

233,  i5 15  par.  2,  2343. 

Art.  419.  In  fixing  the  amount  of  the  support,  the  financial  condition 
of  the  debtor  and  his  domestic  circumstances  must  always  be  considered. 

179,  1 192,  1796  No.  5,  par.  2. 


104 

Art.  420.  Congruous  or  necessary  support  is  due  only  to  the  extent  of 
making  up  the  means  of  subsistence  of  the  beneficiary  to  live  in  a  style 
in  accord  with  his  social  position  or  to  sustain  life. 

Art.  421.  Support  is  due  from  the  date  of  the  first  suit  brought,  and 
shall  be  paid  by  months  in  advance. 

The  restitution  cannot  be  demanded  of  that  portion  of  advance  pay- 
ments which  mav  not  have  been  due  the  beneficiary  by  reason  of  his 
death. 

141 8,  par.  2.     76  of  law  153  of  1887. 

Art.  422.  Support  due  under  the  law  is  understood  to  be  granted  for 
the  entire  life  of  the  beneficiary,  provided  that  the  conditions  which  gave 
legal  grounds  for  the  suit  therefor  continue. 

Nevertheless,  no  male  to  whom  necessary  support  only  is  due  can 
demand  it  after  having  attained  the  age  of  twenty-one  years,  unless  on 
account  of  some  corporal  or  mental  disability  he  is  unable  to  live  from 
his  work ;  but  if  he  should  subsequently  become  disabled,  the  obligation 
to  support  him  shall  be  renewed. 

1 192,  par.  2.     72  of  law  153  of  1887. 

Art.  423.  The  judge  shall  fix  the  form  and  amount  of  the  support, 
and  may  decree  that  it  consist  of  the  interest  on  a  sum  deposited  for  the 
purpose  in  a  savings  institution  or  other  similar  establishment,  to  be 
returned  to  the  supporter  or  his  heirs  when  the  obligation  ceases. 

Art.  424.  The  right  to  demand  support  cannot  be  transferred  by  rea- 
son of  death,  nor  sold  or  conveyed  in  any  manner  whatsoever,  nor  re- 
nounced. 

15,  2474. 

Art.  425.  He  who  owes  support  cannot  oppose  to  the  claimant  in  com- 
pensation what  the  latter  may  owe  him. 

1721,  par.  2,  1677,  No.  1,  2474. 

Art.  426.  Notwithstanding  the  provisions  of  the  two  preceding 
articles,  pensions  for  support  in  arrears  may  be  renounced  or  set  off ,  and 
the  right  to  sue  therefor  may  be  transferred  mortis  causa,  sold  and  as- 
signed, without  prejudice  to  the  prescription  in  favor  of  the  debtor. 

Art.  427.  The  provisions  of  this  Title  do  not  apply  with  regard  to 
allowances  for  support  made  voluntarily  in  a  testament  or  by  a  donation 
inter  vivos,  with  regard  to  which  the  will  of  the  testator  or  donor  must  be 
considered,  in  so  far  as  he  may  have  been  able  to  dispose  freely  of  his 
property. 

"""*         1 192,  1418,  1459,  1242. 


io5 


TITIiB  XXII. 

*  ;    l 

Of  Tutorships  and  Curator.-hips  in  General. 

Chapter  i. 
Definitions  and  Rules  in  General. 

Art.  428.  Tutorships  and  curatorships  are  trusts  imposed  upon  certain 
persons  in  favor  of  those  who  cannot  care  for  themselves,  or  properly  ad- 
minister their  affairs,  and  not  under  the  power  of  a  father  or  husband 
who  can  give  them  the  proper  protection. 

The  persons  discharging  these  trusts  are  called  tutors  or  curators,  and 
generally  guardians. 

Art.  429.  The  provisions  of  this  Title  and  of  the  two  following,  are 
subject  to  the  modifications  and  exceptions  which  will  be  enumerated 
in  the  special  Titles  on  tutorship  and  each  kind  of  curatorship. 

Art.  430.  Tutorship  and  general  curatorships  extend  not  only  to  the 
property  but  also  to  the  persons  of  the  individuals  subject  thereto. 

481,  2347,  par.  3. 

Art.  431.  Persons  who  have  not  attained  the  age  of  puberty  are  sub- 
ject to  tutorship. 

480,  1504. 

Art.  432.  Minors  who  have  not  obtained  qualification  as  to  age  are 
subject  to  general  curatorship ;  as  well  as  those  who  by  reason  of  prodi- 
gality or  insanity  have  been  interdicted  from  administering  their  prop- 
erty, and  deaf-mutes  who  cannot  make  themselves  understood  in 
writing. 

193,  294,  340,  343,48o,  1504. 

Art.  433.  Curators  ad  bona  are  those  appointed  to  the  property  of  an 
absentee,  vacant  inheritances,  and  the  eventual  rights  of  an  unborn  child. 

575,  580. 

Art.  434.  Associate  curators  (curadores  ad  juntos)  are  those  appointed 
in  certain  cases  to  persons  under  the  paternal  or  marital  power,  or  under 
general  tutorship  or  curatorship,  in  order  that  they  may  exercise  a  sepa- 
rate administration. 

581,  582,  440,  295  pars.  2  and  3,  299,  300,  438,  439,  208,  550  No.  1, 
627  par.  2. 


io6 
Art.  435.  A  special  curator  is  one  appointed  for  a  special  matter. 

583. 

Art.  436.  Individuals  subject  to  tutorship  or  curatorship  are  called 
wards. 

Art.  437.  Two  or  more  persons  may  be  placed  under  one  tutorship  or 
curatorship,  provided  that  their  patrimonies  are  undivided. 

If  the  patrimonies  be  divided,  there  are  considered  as  many  tutorships 
or  curatorships  as  there  are  patrimonies,  even  though  one  person  should 
exercise  them. 

The  same  tutorship  or  curatorship  may  be  exercised  jointly  by  two  or 
more  tutors  or  curators. 

'    452. 

Art.  438.  No  tutor  or  general  curator  can  be  appointed  for  one  under 
paternal  power,  unless  the  latter  shall  have  been  suspended  by  a  judicial 
decree  in  any  of  the  cases  enumerated  in  article  315. 

An  associate  curator  shall  be  assigned  a  son,  when  the  father  is  deprived 
of  the  administration  of  the  property  of  the  son,  or  of  a  part  thereof, 
according  to  article  299. 

118,  119,  120. 

Art.  439.  No  curator  can  be  appointed  to  a  married  woman  who  is  not 
divorced  nor  separate  in  property,  as  long  as  the  husband  administers  the 
same. 

A  curator  shall  be  given  a  divorced  woman  in  the  same  cases  in  which, 
if  she  were  unmarried,  she  would  require  a  curator  for  the  administration 
of  her  property. 

The  same  rule  applies  to  a  woman  separate  in  property  with  regard  to 
that  to  which  the  separation  extends. 

The  curatorship  referred  to  in  the  preceding  paragraphs  does  not  affect 
the  rights  retained  by  the  husband  of  the  woman  separate  in  property 
according  to  article  204. 

208. 

Art.  440.  Generally  no  tutor  nor  curator  can  be  given  him  who  already 
has  such :  he  may  only  be  given  an  associate  curator,  in  the  cases  pre- 
scribed by  law. 

Art.  44 1 .  If  the  tutor  or  curator,  pleading  the  excessive  complication 
of  the  affairs  of  the  ward  and  his  inability  to  administer  them  properly, 
should  request  the  appointment  of  an  associate  curator,  the  Judge  or 
Prefect  may  comply  with  such  request  after  hearing  thereon  the  relatives 
of  the  ward  and  the  respective  counsel. 


io7 

The  Judge  or  Prefect  shall  then  divide  the  administration  in  the  man- 
ner he  may  deem  best. 

61,  508. 

Art.  442.  If  a  donation  be  bestowed  upon  a  person  under  tutorship  or 
curatorship,  or  if  he  be  left  an  inheritance  or  legacy  under  the  strict  con- 
dition that  the  property  comprised  in  the  donation,  inheritance  or  legacy 
be  administered  by  a  person  designated  by  the  donor  or  testator,  the 
wishes  of  the  latter  shall  be  respected;  unless,  after  having  heard  the 
relatives  and  the  respective  counsel,  it  shall  appear  that  it  is  more  con- 
venient for  the  ward  to  renounce  the  donation,  inheritance  or  legacy, 
than  to  accept  it  under  those  terms. 

If  the  donation,  inheritance  or  legacy  be  accepted,  and  the  donor  or 
testator  should  not  have  designated  any  person,  or  the  person  desig- 
nated should  not  be  a  suitable  one,  the  Judge  shall  make  the  appoint- 
ment. 

296,  316  par.  2,  300,  450,  486,  487,  1293,  1307  par.  2,  61. 

Art.  443.  Tutorships  or  curatorships  may  be  testamentary,  legal  or 
dative. 

Testamentary,  are  those  constituted  by  a  testamentary  act. 

Legal,  those  conferred  by  law  upon  the  relatives  or  spouses  of  the 
ward. 

Dative,  those  conferred  by  the  magistrate. 

The  guardianship  conferred  by  an  act  inter  vivos,  according  to  article 
450,  is  subject  to  the  rules  governing  testamentary  tutorships. 

Chapter  2. 

Testamentary  Tutorship  or  Guardianship. 

Art.  444.  A  legitimate  father  may  appoint  a  tutor,  by  testament,  not 
only  to  living  children,  but  also  to  those  still  in  the  maternal  womb, 
in  the  event  that  they  should  be  born  alive. 

574,  447,  448,  45o. 

Art.  445.  He  may  likewise  appoint  a  curator,  by  testament,  to  minor 
adults  who  have  not  been  qualified  to  administer  their  property ;  and  for 
adults  of  any  age,  who  may  be  in  a  state  of  insanity,  or  deaf  mutes,  who 
cannot  understand  nor  make  themselves  understood  in  writing. 

540,  574- 


io8 

Art.  446.  He  may  likewise  appoint  a  curator,  by  testament,  for  the 
defense  of  the  eventual  rights  of  the  son  about  to  be  born. 

574- 

Art.  447.  A  father  who  has  been  deprived  of  the  paternal  power  by 
a  judicial  decree,  according  to  article  3 1 5,  or  who  by  reason  of  bad  admin- 
istration has  been  judicially  removed  from  the  guardianship  of  the  son, 
shall  not  enjoy  the  rights  conferred  by  the  preceding  articles. 

299. 

Art.  448.  In  default  of  a  father,  the  same  rights  may  be  exercised  by 
the  mother,  provided  that  she  has  not  been  divorced  for  adultery,  or  that 
by  reason  of  her  bad  conduct  she  has  not  been  relieved  of  the  personal 
care  of  the  son,  or  that  she  has  not  contracted  a  new  marriage. 

288,  163,  160,  161,  599.     53  of  law  153  of  1887. 

Art.  449.  The  natural  father  or  mother  may  exercise  the  rights 
granted  by  the  preceding  articles  to  the  legitimate  father. 

Art.  450.  Legitimate  or  natural  parents,  notwithstanding  the  provis- 
ions of  articles  447  and  448,  and  any  other  person,  may  appoint  a  tutor 
or  curator,  by  testament  or  by  an  act  inter  vivos,  provided  they  donate 
to  or  leave  the  ward  a  portion  of  their  property,  not  due  him  as  a  legitime. 

This  guardianship  shall  be  limited  to  the  property  donated  or  left  the 
ward. 

283,  434,  438  par.  2,  442,  443. 

Art.  45 1 .  Two  or  more  tutors  or  curators  to  exercise  the  guardianship 
simultaneously,  may  be  a  ppointed  by  testament ;  and  the  testator  shall 
have  the  power  to  divide  the  administration  among  them. 

508. 

Art.  452.  If  there  should  be  a  number  of  wards,  and  the  testator 
should  divide  them  among  the  tutors  or  curators  appointed,  all  of  the 
latter  shall  exercise  the  tutorship  or  curatorship  conjointly,  while  the 
patrimony  remains  undivided,  and  upon  the  division  of  the  patrimony, 
the  guardianship  shall  be  divided  among  them,  and  they  shall  be  indepen- 
dent from  each  other. 

But  the  care  of  the  person  of  each  ward  shall  be  exclusively  under  the 
respective  tutor  or  curator,  even  while  the  patrimony  remains  undivided. 

437,5o8.  s    m 


109 

Art.  453.  If  the  testator  shall  appoint  a  number  of  tutors  or  curators 
to  exercise  the  tutorship  or  curatorship  jointly,  and  should  not  divide  the 
functions  among  them,  the  Judge  or  Prefect  may,  after  hearing  the  rela- 
tives of  the  ward,  entrust  such  duties  to  one  of  the  appointees  or  to  the 
number  of  them  which  he  may  consider  sufficient,  and,  in  the  latter  case, 
divide  them  as  may  be  best  for  the  security  of  the  interests  of  the  ward. 

61,  508,  462. 

Art.  454.  A  number  of  tutors  or  curators  may  likewise  be  appointed 
by  testament  to  substitute  or  succeed  each  other ;  and  the  substitution 
or  succession  being  established  for  a  special  case,  it  shall  be  applied  to 
the  other  cases  in  which  a  tutor  or  curator  is  lacking,  unless  it  shall  mani- 
festly appear  that  the  testator  wished  to  limit  the  substitution  or  succes- 
sion to  the  case  or  cases  designated. 

Art.  455.  Tutorships  and  curatorships  are  susceptible  of  suspensive 
and  resolutory  conditions  and  the  fixing  of  a  certain  day  for  their  com- 
mencement or  determination. 


Chapter  3. 
Of  Legal  Tutorship  or  Curatorship. 

Art.  456.  Legal  guardianship  takes  place  in  default  or  on  the  termi- 
nation of  testamentary  guardianship. 

It  takes  place  especially  when,  the  father  being  living,  the  minor  is 
emancipated,  and  when  the  paternal  power  is  suspended  by  judicial 
decree. 

Art.  457.  Those  called  to  legal  tutorship  or  curatorship,  are,  in  general : 

In  the  first  place,  the  father  of  the  ward. 

In  the  second,  the  mother. 

In  the  third,  the  legitimate  ascendants  of  either  sex. 

In  the  fourth,  the  brothers  of  the  ward,  and  the  brothers  of  the  as- 
cendants of  the  ward. 

If  the  tutorship  or  curatorship  of  the  father  or  mother  should  not  be 
available,  the  Judge  or  Prefect,  after  hearing  the  relatives  of  the  ward, 
shall  select  from  among  the  other  ascendants,  and  in  the  absence  of 
ascendants,  from  among  the  collaterals  herein  designated,  the  person 
appearing  to  him  best  suited  and  presenting  the  best  security;  and  he 
may  also,  if  he  should  deem  it  advisable,  select  more  than  one  person, 
and  divide  the  duties  among  them. 

The  relationships  mentioned  in  this  article  are  understood  to  be  legiti- 
mate. 

61,  508,  537  par.  5.  550  par.  7. 


no 

Art.  458.  The  father  or  mother  first  acknowledging  the  natural  child, 
or  who  is  first  given  this  character,  is  called  to  the  legal  guardianship,  and 
if  both  acknowledge  him  or  are  declared  at  the  same  time  natural  par- 
ents of  the  minor,  the  father  is  given  preference  in  the  guardianship  of 
the  latter.  Such  call  shall  terminate  any  other  guardianship  under  which 
the  minor  may  be,  excepting  in  the  event  of  the  incapacity  or  legitimate 
excuse  of  the  person  who,  according  to  the  preceding  paragraph,  is  called 
upon  to  discharge  it. 

537  No.  2,  550  No.  4,  591.     61,  par.  2,  of  law  153  of  1887.      . 

Art.  459.  If  a  legal  guardian  should  cease  his  duties,  and  the  guar- 
dianship is  to  be  continued,  he  shall  be  replaced  by  another  of  the  same 
character. 

Chapter  4. 
Of  Dative  Tutorship  or  Curatorship. 

Art.  460.  In  default  of  any  other  tutorship  or  curatorship,  dative 
guardianship  takes  place. 

Art.  461.  If,  for  any  reason  whatsoever,  the  confirmation  of  a  tutor- 
ship or  curatorship  is  delayed,  or  if,  during  the  same,  some  obstacle 
should  occur  preventing  the  tutor  or  curator  from  discharging  it  any 
longer  or  for  some  time,  the  Magistrate  shall  appoint  a  temporary  tutor 
or  curator  for  the  period  of  the  delay  or  obstacle. 

But  if  there  should  be  another  tutor  or  curator  who  can  supply  the 
absence,  or  if  it  be  a  question  of  appointing  a  tutor  or  curator  to  succeed 
the  one  actually  discharging  the  tutorship  or  curatorship,  and  the  latter 
may  continue  therein  for  some  time,  the  appointment  of  a  provisional 
one  shall  not  take  place. 

588  pars.  2,  3,  and  4,  631. 

Art.  462.  The  Magistrate,  in  selecting  a  dative  tutor  or  curator, 
must  hear  the  relatives  of  the  ward;  and  he  may,  in  a  necessary  case, 
appoint  two  or  more,  and  divide  the  duties  among  them,  as  in  the  case 
of  art.  453. 

If  there  be  an  associate  curator,  the  Judge  or  Prefect  may  prefer  him 
for  the  dative  tutorship  or  curatorship. 

61,  508.  _ 


Ill 


TITLE  XXIII. 

Of  the  Measures  and  Formalities  which  must  Precede  the  Exer- 
cise of  Tutorship  or  Curatorship. 

Art.  463.  Every  tutorship  or  curatorship  must  be  confirmed  (dis- 
ccrnida) . 

Confirmation  (discernimiento)  is  the  judicial  decree  authorizing'  the 
tutor  or  curator  to  enter  upon  the  discharge  of  his  duties. 

Art.  464.  In  order  to  confirm  the  tutorship  or  curatorship  it  is  neces- 
sary that  the  bond  or  security  which  the  tutor  or  curator  is  obliged  to 
furnish  be  filed. 

Nor  shall  the  administration  of  the  property  be  given  him  without  a 
formal  inventory  thereof  being  first  made. 

470,  584,  1 34 1. 

Art.  465.  All  tutors  or  curators  are  obliged  to  give  bond,  except- 
ing^ only : 

1 .  The  spouse,  and  the  legitimate  ascendants  and  descendants. 

2.  Provisional  guardians,  called  upon  to  exercise  the  duties  for  a  short 
term. 

3.  Those  appointed  for  a  specific  matter,  without  the  administration 
of  property. 

A  tutor  or  curator  of  well  known  probity  and  having  sufficient  means 
to  answer  therefor,  may  also  be  relieved  from  giving  bond,  if  the  ward 
have  little  property. 

605,  1297  par.  2,  584. 

Art.  466.  In  place  of  the  bond  prescribed  in  the  preceding  article, 
a  sufficient  mortgage  may  be  given. 

605,  2363  par.  2. 

Art.  467.  Acts  of  the  tutor  or  curator  which  have  not  as  yet  been 
authorized  by  the  decree  of  confirmation,  are  null ;  but  the  decree,  after 
having  been  obtained,  shall  validate  prior  acts  in  which  delay  would 
have  caused  prejudice  to  the  ward. 

Art.  468.  The  tutor  or  curator  is  obliged  to  make  an  inventory  of  the 
property  of  the  ward  within  ninety  days  after  confirmation,  and  before 
taking  any  part  whatsoever  in  the  administration,  except  in  so  far  as  it 
should  be  absolutely  necessary. 

The  Judge  or  Prefect,  according  to  the  circumstances,  may  reduce  or 
extend  this  period. 


112 

Through  negligence  on  the  part  of  the  guardian  in  making  the  inven- 
tory and  for  any  grave  fault  which  may  be  charged  to  him,  he  may  be 
removed  from  the  tutorship  or  guardianship  as  suspicious,  and  may  be 
adjudged  to  pay  all  loss  or  damage  resulting  therefrom  to  the  ward,  in 
the  manner  prescribed  in  article  512. 

470,  2196  par.  2,  584,  523,  627. 

Art.  469.  The  testator  cannot  relieve  the  tutor  or  curator  from  the 
obligation  of  making  an  inventory. 

504  par.  2. 

Art.  470.  If  the  tutor  or  curator  shall  prove  that  the  amount  of 
property  is  too  small  to  support  the  expense  of  preparing  the  inventory, 
the  Judge  or  Prefect  may,  after  hearing  the  relatives  of  the  ward  and 
the  guardian  of  minors  (defensor  de  menores),  remit  the  obligation  of 
making  a  formal  inventory  of  such  property  and  require  only  a  private 
memorandum  over  the  signatures  of  the  tutor  or  curator,  and  of  three 
of  the  nearest  relatives,  of  legal  age,  or  of  other  reputable  persons,  in 
the  absence  of  the  latter. 


Art.  471.  The  inventory  must  be  made  before  a  notary  and  witnesses, 
in  the  form  prescribed  in  the  Code  of  Procedure. 

1310,  1312,  1822,  1341. 

Art.  472.  The  inventory  shall  show  all  the  real  property  and  mova- 
bles of  the  person  whose  estate  is  being  inventoried,  particularizing 
them  one  by  one,  or  stating  collectively  those  that  consist  in  number, 
weight  or  measure,  stating  the  amount  and  quality;  without  prejudice 
to  making  the  explanations  necessary  to  protect  the  liability  of  the 
guardian. 

It  shall  also  include  the  titles  of  ownership,  the  public  and  private 
instruments,  the  credits  and  debts  of  the  ward  of  which  he  may  have 
vouchers  or  information  only,  the  commercial  or  account  books,  and, 
in  general,  all  present  objects,  excepting  such  as  are  known  to  have  no 
value  or  utility,  or  which  it  may  be  necessary  to  destroy  for  some  moral 
purpose. 

Art.  473.  If  after  the  inventory  shall  have  been  made,  property 
should  be  found  of  which  there  was  no  information  at  the  time  of  making 
it,  or  under  any  title  new  property  should  accrue  to  the  estate  inventoried, 
a  formal  inventory  shall  be  made  thereof  and  added  to  the  previous  one. 

Art.  474.  The  inventory  must  comprise  even  the  things  which  did  not 
belong  to  the  person  whose  estate  is  inventoried,  if  they  are  found  among 


H3 

those  that  are;  and  the  liability  of  the  tutor  or  curator  shall  extend  to 
both. 

1826  par.  2. 

Art.  475.  The  mere  assertion  made  in  an  inventory  that  the  objects 
enumerated  belong  to  certain  persons,  is  not  proof  as  to  the  real  owner- 
ship thereof. 

Art.  476.  If  the  tutor  or  curator  shall  plead  that  things  have  been  em- 
bodied in  the  inventory  which  did  not  exist,  or  the  number,  weight  or 
measure  of  those  existing  has  been  exaggerated,  or  that  they  have  been 
given  a  substance  or  quality  that  they  lacked,  such  an  exception  shall 
not  benefit  him,  unless  he  prove  that  the  error  could  not  have  been 
avoided  with  proper  care  on  his  part,  or  without  scientific  examinations 
or  analyses. 

1624  par.  2. 

Art.  477.  A  tutor  or  curator  who  shall  plead  that  he  has,  knowingly, 
included  in  the  inventory  things  which  were  not  really  delivered  to  him, 
shall  not  be  heard,  even  though  he  offer  to  prove  that  he  had  some  pur- 
pose in  view  advantageous  to  the  ward. 

Art.  478.  Obscure  or  doubtful  passages  in  the  inventory  shall  be  con- 
strued in  favor  of  the  ward,  unless  there  be  evidence  to  the  contrary. 

50,  1624,  66  pars.  2  and  3. 

Art.  479.  A  tutor  or  curator  succeeding  another,  shall  receive  the 
property  under  the  previous  inventory  and  make  a  note  thereon  of  any 
differences.  This  shall  be  done  with  the  same  formalities  as  were  ob- 
served in  making  the  previous  inventory,  which  shall  thus  become  the 
inventory  of  the  successor. 


ii4 


TITLE  XXIV. 

Of  the  Administration  of  Tutors  and  Curators  with  Regard  to  the 

Property. 

Art.  480.  It  is  the  duty  of  the  tutor  or  curator  to  represent  or  author- 
ize the  ward  in  all  judicial  or  extrajudicial  proceedings  concerning  him 
and  which  might  impair  his  rights  or  impose  obligations  upon  him. 

784,  1502,  1504,  1634,  1636,  1637. 

Art.  48 1 .  The  tutor  or  curator  administers  the  property  of  the  ward 
and  is  under  the  obligation  of  preserving  such  property  and  of  keeping  it 
in  repair  and  under  cultivation.  His  liability  extends  to  a  slight  fault, 
inclusive. 

430,  2502  No.  5,  63,  1604. 

Art.  482.  If  there  should  be  appointed  in  the  testament  a  person 
whom  the  guardian  is  to  consult  in  the  discharge  of  his  duties,  he  shall 
not  thereby  be  bound  by  the  decisions  of  the  advisor,  nor  by  acting  in 
accordance  therewith,  is  he  relieved  from  liability. 

If  it  should  be  expressly  ordered  in  the  testament  that  the  guardian 
act  with  the  concurrence  of  the  advisor,  the  liability  of  the  former  in 
assenting  to  the  opinion  of  the  latter  shall  not  cease ;  but  should  there  be 
disagreement  between  them,  the  guardian  shall  act  only  with  the  au- 
thority of  the  Judge  or  Prefect,  who  shall  grant  it  after  an  investigation 
into  the  matter. 

517  par.  2. 

Art.  483.  Without  a  judicial  decree,  it  shall  not  be  legal  for  the  tutor 
or  curator  to  alienate  the  real  property  of  the  ward,  nor  encumber  it  with 
a  mortgage  or  servitude,  nor  alienate  or  pledge  valuable  personal  prop- 
erty or  that  which  has  a  special  value  (valor  de  afeccion) ;  nor  can 
the  Judge  or  Prefect  authorize  such  acts,  unless  it  be  for  a  cause  of  utility 
or  manifest  necessity. 

189,  1777,  521,  1810,  749. 

Art.  484.  The  sale  of  any  part  of  the  property  of  the  ward  enumerated 
in  the  preceding  articles,  shall  take  place  at  a  public  auction. 

Notwithstanding  the  provisions  of  article  483,  if  a  decree  of  execution 
and  attachment  against  real  property  of  the  ward  shall  have  issued  pre- 
viously, a  new  decree  for  the  sale  thereof  shall  not  be  necessary. 


i      JI5 

Nor  shall  a  judicial  decree  be  necessary  for  the  constitution  of  a  mort- 
gage or  servitude  upon  real  property  which  has  been  conveyed  to  the 
ward  with  the  charge  of  constituting  said  mortgage  or  servitude. 

Art.  485.  The  tutor  or  curator  cannot,  without  a  previous  judicial 
decree,  proceed  to  divide  the  real  or  hereditary  property  which  the  ward 
possesses  with  others  pro  indiviso. 

If  the  Judge  or  Prefect,  on  the  petition  of  a  co-owner  or  co-heir,  shall 
have  decreed  the  division,  a  new  decree  shall  not  be  necessary. 

1379. 

Art.  486.  The  tutor  or  curator  cannot  repudiate  any  inheritance 
deferred  to  the  ward,  without  a  judicial  decree  rendered  after  an  inves- 
tigation into  the  matter,  nor  accept  it  without  the  benefit  of  inventory. 

304,  1282,  1293,  442,  1307  par.  2. 

Art.  487.  Nor  can  donations  or  legacies  be  repudiated  without  a 
judicial  decree ;  and  if  obligations  or  charges  be  imposed  upon  the  ward, 
they  cannot  be  accepted  without  the  previous  appraisement  of  the 
things  donated  or  bequeathed. 

Articles  cited  to  art.  486. 

Art.  488.  After  the  division  of  an  inheritance  or  of  real  property 
which  the  ward  possesses  with  others  pro  indiviso,  shall  have  been  made, 
a  new  judicial  decree  approving  and  confirming  it  with  a  hearing  of  the 
respective  counsel,  shall  be  necessary  in  order  that  it  may  be  effective. 

1399- 

Art.  489.  A  decree  is  also  first  necessary  in  order  to  effect  settlements 
or  compromises  of  rights  of  the  ward,  valued  at  more  than  one  thousand 
pesos,  or  involving  his  real  property ;  and  in  each  case  the  settlement  or 
the  decision  of  the  arbitrator  shall  be  submitted  to  judicial  approval, 
under  the  penalty  of  nullity. 

1293,  2470. 

Art.  490.  Money  which  has  been  left  or  donated  a  ward  for  the  pur- 
chase of  real  property,  cannot  be  destined  to  any  other  object  prevent- 
ing or  embarrassing  the  acquisition  thereof;  unless  with  judicial  inter- 
vention, after  an  investigation  into  the  matter. 

Art.  491.  The  donation  of  real  property  belonging  to  the  ward  is 
forbidden,  even  though  under  a  judicial  decree. 

Only  under  a  judicial  decree  can  donations  be  made  in  money  or  other 
movable  property  of  the  ward ;  and  the  Judge  shall  not  authorize  them 


n6 

except  for  a  grave  cause,  such  as  the  assistance  of  a  needy  relative  by 
consanguinity,  to  contribute  to  an  object  of  public  charity,  or  for  a  simi- 
lar purpose ;  and  provided  that  they  be  in  proportion  with  the  means  of 
the  ward,  and  that  the  productive  capitals  be  not  notably  reduced 
thereby. 

Expenditures  of  little  value  for  purposes  of  charity,  or  of  licit  recrea- 
tion, are  not  subject  to  the  foregoing  prohibition. 

1445,  1449. 

Art.  492.  The  gratuitous  remission  of  a  right  is  subject  to  the  rules 
governing  donations. 

1711  to  1713,  1450,  1458. 

Art.  493.  The  ward  cannot  become  bound  as  surety  without  a  prior 
judicial  decree,  which  shall  authorize  such  surety  only  in  favor  of  a 
spouse,  a  legitimate  or  natural  ascendant  or  descendant,  and  for  an 
urgent  and  grave  reason. 

1504- 

Art.  494.  Debtors  of  the  ward  who  pay  the  tutor  or  curator,  are  dis- 
charged from  any  further  payment. 

1634,  1635,  1636,  1637. 

Art.  495.  The  tutor  or  curator  must  lend  the  idle  money  of  the  ward 
out  under  the  best  security,  at  the  current  market  rates  of  interest. 

He  may,  if  he  considers  it  preferable,  employ  such  money  in  the  pur- 
chase of  real  property. 

Any  omission  in  this  respect  on  his  part  shall  make  him  liable  for  the 
ceasing  income  (lucro  cesante),  in  so  far  as  it  shall  appear  that  the  idle 
funds  of  the  ward  could  have  been  invested  with  manifest  profit  and 
without  danger. 

2172,  2183. 

Art.  496.  The  tutor  or  curator  cannot  give  in  lease  any  part  of  the 
rural  property  of  the  ward  for  more  than  eight  years,  nor  urban  property 
for  more  than  five,  nor  for  a  greater  number  of  years  than  are  lacking 
for  the  ward  to  attain  the  age  of  twenty-one. 

If  he  should  do  so,  the  lease  shall  not  be  binding  upon  the  ward,  or 
upon  the  person  succeeding  him  in  the  ownership  of  the  property,  as  to 
the  period  exceeding  the  limits  herein  established. 

304,  645,  1813. 


ii7 

Art.  497.  The  tutor  or  curator  shall  see  that  what  is  owed  the  ward 
is  paid  immediately  upon  its  falling  due,  and  shall  proceed  against 
debtors  by  legal  means. 

1315,  2183. 

Art.  498.  The  tutor  or  curator  shall  take  special  care  to  interrupt 
the  prescriptions  which  may  run  against  the  ward. 

2530  No.  1,  2532,  2541  par.  2,  2544,  2545. 

Art.  499.  The  tutor  or  curator  may  recover  from  the  funds  of  the 
ward  the  advances  he  may  have  made  for  the  benefit  of  the  latter, 
together  with  the  current  market  rate  of  interest;  but  he  must  be 
authorized  therefor  by  the  other  general  tutors  or  curators  of  the  ward, 
if  there  be  any,  or  by  the  Judge  or  Prefect  in  substitution. 

If  the  ward  should  owe  him  a  specific  thing,  real  or  movable,  under 
the  title  of  a  legacy,  trust,  or  any  other,  it  is  necessary  that  the  posses- 
sion thereof  be  given  the  tutor  or  curator  by  the  other  tutors  or  curators, 
or  by  the  Judge  or  Prefect  in  substitution. 

Art.  500.  In  all  acts  and  contracts  executed  or  entered  into  by  the 
tutor  or  curator  on  behalf  of  the  ward,  he  must  state  this  condition  in  the 
said  act  or  contract;  under  the  penalty  that  if  this  statement  is  omitted, 
the  act  shall  be  considered  as  executed  or  the  contract  celebrated  on 
behalf  of  the  ward,  if  it  be  advantageous  to  the  latter,  and  otherwise  not. 

478,  1624  par.  2. 

Art.  501.  As  a  general  rule,  no  act  or  contract  in  which  the  tutor  or 
curator,  or  his  spouse,  or  any  of  his  legitimate  ascendants  or  descen- 
dants or  of  his  natural  parents  or  children,  or  of  his  legitimate  or  natural 
brothers,  or  legitimate  relatives  by  consanguinity  or  affinity  up  to  the 
fourth  degree  inclusive,  or  of  his  adopting  father  or  mother  or  adopted 
child,  or  of  any  of  his  business  partners,  have  an  interest  directly  or 
indirectly,  can  be  executed  or  celebrated  without  the  authority  of  the 
other  general  tutors  or  curators  who  are  not  implicated  in  the  same 
manner,  or  by  the  Judge  or  Prefect  in  substitution. 

But  not  even  in  this  manner  can  the  tutor  or  curator  purchase  real 
property  of  the  ward,  or  take  it  under  lease ;  and  this  prohibition  extends 
to  his  spouse  and  to  his  legitimate  or  natural  ascendants  or  descendants, 
adopting  parents  or  adopted  child. 
1855,  1856,  2170,  1500,  1 35 1. 

Art.  502.  If  there  be  a  number  of  general  tutors  or  curators,  all  of 
them  shall  authorize  the  acts  and  contracts  of  the  ward  jointly ;  but  in 
matters  which,  owing  to  the  division  of  the  administration,  are  under 


n8 

the  special  charge  of  one  of  said  tutors  or  curators,  the  intervention  or 
authorization  of  that  one  alone  shall  be  sufficient. 

It  shall  be  understood  that  the  tutors  or  curators  act  jointly,  when  one 
of  them  should  do  so  in  the  name  of  the  others,  by  virtue  of  a  formal 
mandate ;  but  in  such  case  the  solidary  liability  of  the  others  shall  subsist. 

In  the  event  of  disagreement  among  them,  the  Prefect  shall  decide. 

508,  2102  par.  2,  1340,  2153. 

Art.  503.  The  tutor  or  curator  shall  be  entitled  to  recover  the  ex- 
penses he  may  have  incurred  in  the  discharge  of  his  duties :  in  the  event 
of  a  legitimate  objection,  the  Prefect  shall  have  them  appraised. 

2184  No.  2. 

Art.  504.  The  tutor  or  curator  is  obliged  to  keep  a  faithful  and  exact 
account,  and  in  so  far  as  practicable,  with  vouchers,  of  all  his  adminis- 
trative acts,  day  by  day;  to  produce  it  as  soon  as  he  concludes  his  admin- 
istration ;  to  restore  the  property  to  the  person  legally  entitled  thereto ; 
and  to  pay  the  balance  appearing  against  him. 

This  obligation  applies  to  all  tutors  or  curators,  including  a  testamen- 
tary one,  notwithstanding  the  fact  that  the  testator  shall  have  relieved 
him  from  rendering  any  account  or  remitted  in  advance  any  balance; 
and  even  though  the  ward  have  no  other  property  but  that  of  which  the 
succession  of  the  testator  consists,  and  although  it  be  left  him  under 
the  strict  condition  of  not  demanding  the  account  or  the  balance.  Such 
a  condition  shall  be  considered  as  not  written. 

2 18 1  pars.  2  and  3,  1319,469,  505,  506,  507,  511  to  514. 

Art.  505.  The  Judge  or  Prefect  may,  ex  proprio  motu,  whenever  he 
deems  it  advisable,  order  that  the  tutor  or  curator,  even  during  his  guar- 
dianship, produce  the  accounts  of  his  administration  or  inform  the  other 
tutors  or  curators  of  the  said  ward,  or  a  special  curator,  whom  the  Judge 
or  Prefect  shall  appoint  for  the  purpose,  of  the  balance  on  hand.  Such 
an  order  may,  for  a  grave  cause  verbally  qualified  by  the  Judge,  be  re- 
quested by  any  other  tutor  or  curator  of  the  same  ward,  or  by  any  of  the 
nearest  relatives  by  consanguinity  of  the  latter,  or  by  his  spouse,  or  by 
the  respective  defender. 

Art.  506.  Upon  the  expiration  of  his  guardianship,  the  guardian  shall 
turn  over  the  property  as  soon  as  possible;  without  prejudice  to  execut- 
ing in  the  meantime  such  acts  as  would  otherwise  be  delayed  to  the  preju- 
dice of  the  ward. 

Art.  507.  If  there  be  several  guardians  administering  jointly,  all  of 
them,  upon  the  expiration  of  their  guardianship,  shall  submit  a  single 


U9 

account ;  but  if  the  administration  shall  have  been  divided  among  them, 
an  account  shall  be  presented  for  each  separate  administration. 

502,  504,  508,  509,  510. 

Art.  508.  The  liability  of  tutors  and  curators  administering  jointly  is 
solidary ;  but  if  the  administration  be  divided  among  them,  whether  by 
the  testator,  or  by  an  order  or  with  the  approval  of  the  Judge  or  Prefect, 
each  shall  be  directly  liable  only  for  his  own  acts,  and  subsidiarily  for  the 
acts  of  the  other  tutors  or  curators,  in  so  far  as  exercising  the  right 
granted  them  by  article  505,  they  shall  have  been  able  to  prevent  the 
improper  administration  of  the  other  tutors  or  curators. 

This  subsidiary  liability  extends  even  to  the  general  tutors  or  curators 
who  have  no  administrative  duties. 

General  tutors  or  curators  are  subject  to  a  similar  subsidiary  liability 
on  account  of  the  fraudulent  administration  of  associate  curators. 

502,  582,  1338. 

Art.  509.  The  subsidiary  liability  prescribed  in  the  preceding  article, 
does  not  extend  to  the  tutors  or  curators  who,  the  administration  having 
been  divided  by  a  provision  of  the  testator  or  with  the  authority  of  the 
Judge  or  Prefect,  administer  in  different  departments. 

510. 

Art.  510.  The  liability  of  the  tutors  or  curators  is  solidary,  when  they 
divide  the  administration  among  themselves  by  private  agreement  only. 

509,  2102,  2153. 

Art.  511.  The  account  having  been  submitted  by  the  tutor  or  curator, 
it  shall  be  examined  by  the  person  to  whom  the  administration  of  the 
property  may  pass. 

If  the  administration  is  transferred  to  another  tutor  or  curator,  or  to 
the  ward  himself  when  qualified  as  to  age,  the  account  shall  not  be  closed 
unless  judicially  approved,  after  having  heard  the  respective  defender. 

5<>4  • 

Art.  512.  Against  a  tutor  or  curator  who  does  not  give  a  true  account 
of  his  administration,  exhibiting  at  the  same  time  the  inventory  and  pro- 
ducing the  balance  on  hand,  or  who  shall  have  been  convicted  during  his 
administration  of  fraud  or  grave  fault,  the  ward  shall  have  a  right  to 
estimate  and  swear  to  the  amount  of  the  prejudice  received,  including 
therein  the  lost  profits,  and  the  tutor  or  curator  shall  be  adjudged  to  pay 


120 

the  amount  estimated  and  sworn  to,  unless  the  Judge  or  Prefect  shall 
have  deemed  proper  to  reduce  the  same. 

63,  5H. 

Art.  513.  The  tutor  or  curator  shall  pay  the  current  interest  on  the 
balance  appearing  against  him,  from  the  date  his  account  is  closed  or  on 
which  he  has  incurred  default  in  producing  it ;  and  he  shall,  on  the  other 
hand,  receive  interest  on  the  balance  in  his  favor,  if  he  demands  it,  from 
the  date  his  account  is  closed. 

504,  1367,  2182,  2184. 

Art.  514.  Every  right  of  action  of  the  ward  against  the  tutor  or  cura- 
tor by  reason  of  the  tutorship  or  curatorship,  shall  prescribe  in  four  years, 
counted  from  the  date  upon  which  the  ward  shall  have  ceased  to  be  sub- 
ject to  guardianship. 

If  the  wafd  should  die  before  the  expiration  o^  be  four  years,  such 
right  of  action  shall  prescribe  in  the  time  lacking  to  complete  them. 

504,  512. 

Art.  515.  He  who  discharges  the  duties  of  a  tutor  or  curator,  not 
being  so  in  fact,  but  under  the  belief  that  he  is,  has  all  the  obligations  and 
liabilities  of  the  real  tutor  or  curator,  and  his  acts  shall  not  be  binding 
upon  the  ward,  excepting  in  so  far  as  the  latter  may  have  derived  posi- 
tive advantage  therefrom. 

If  his  tutorship  or  curatorship  shall  have  been  confirmed,  and  he  shall 
have  administered  honestly,  he  shall  be  entitled  to  the  usual  compensa- 
tion, and  the  trust  may  be  conferred  upon  him,  if  no  person  having  a 
better  right  to  exercise  it  should  appear. 

But  if  he  should  have  acted  in  bad  faith,  pretending  to  be  the  tutor  or 
curator,  he  must  be  removed  from  the  administration,  and  deprived  of 
all  the  emoluments  of  the  tutorship  or  curatorship,  without  prejudice  to 
the  penalty  which  may  lie  by  reason  of  the  imposition. 

600,  2304  et  seq. 

Art.  516.  He  who,  in  a  case  of  necessity  and  to  protect  the  ward,  shall 
assume  the  administration  of  the  property  of  the  latter,  shall  apply  to  the 
Prefect  immediately,  in  order  that  he  may  provide  for  the  tutorship  or 
curatorship,  and  in  the  meantime  he  shall  act  as  negotiorum  gestor  and 
shall  have  the  obligations  and  rights  of  such  only.  Any  voluntary  de- 
lay in  applying  to  the  Prefect  shall  render  him  liable,  even  for  a  very 
slight  fault. 

2146,  2304  et  seq. 


121 

TITLE  XXV. 

Special  Rules  Relating  to  Tutorship. 

Art.  517.  With  regard  to  the  bringing  up  and  education  of  the  ward, 
the  tutor  is  obliged  to  defer  to  the  will  of  the  person  or  persons  in  charge 
thereof,  according  to  the  provisions  of  Title  22;  without  prejudice  to 
appealing  to  the  Prefect  or  Judge  when  he  shall  consider  it  advisable. 

But  the  father  or  mother  exercising  a  tutorship,  shall  not  be  obliged  to 
consult  any  person  whatsoever  in  this  matter,  unless  the  father,  in  con- 
ferring the  tutorship  upon  the  mother,  shall  have  imposed  this  obligation ; 
in  such  case  the  provisions  of  article  482  shall  be  observed. 

253,  254,  258.     53,  par.  2,  61  to  64  of  law  153  of  1887. 

Art.  518.  The  tutor,  in  case  of  negligence  of  the  person  or  persons  in 
charge  of  the  bringing  up  and  education  of  the  ward,  shall  by  all  reason- 
able means  endeavor  to  have  them  comply  with  their  duty,  and  if  neces- 
sary, shall  appeal  to  the  Prefect  or  Judge. 

Articles  cited  and  434,  582,  par.  1. 

Art.  519.  The  ward  shall  not  reside  in  the  dwelling  or  under  the 
special  care  of  any  one  of  those  who  would  succeed  to  his  property  in  the 
event  of  his  death. 

Neither  legitimate  ascendants  nor  natural  parents  are  subject  to  this 
exclusion. 

552  par.  2. 

Art.  520.  If  the  parents  should  not  have  provided  by  testament  for 
the  bringing  up  and  education  of  the  ward,  the  tutor  shall  furnish  what 
may  be  necessary  for  these  purposes,  according  to  the  social  rank  of  the 
family,  taking  it  from  the  property  of  the  ward,  and,  in  so  far  as  possible, 
from  the  fruits. 

The  tutor  shall  be  liable  for  every  immoderate  expenditure  in  the 
bringing  up  and  education  of  the  ward,  even  though  it  be  taken  from  the 
fruits. 

In  order  to  protect  his  liability,  he  may  request  the  Judge  to  fix  the 
maximum  sum  which  is  to  be  spent  on  the  bringing  up  and  education  of 
the  ward,  in  view  of  his  means. 

Art.  521.  If  the  fruits  of  the  property  of  the  ward  should  not  be  suf- 
ficient for  his  moderate  support  and  the  necessary  education,  the  tutor 
may  alienate  or  encumber  a  portion  of  the  property,  not  contracting  any 


122 

loans  nor  touching  the  real  property  or  productive  capitals,  except  under 
extreme  necessity  and  with  the  proper  authority. 

483,  1810. 

Art.  522.  If  the  ward  be  indigent,  the  tutor  shall  apply  to  the  persons 
who  by  reason  of  their  relationship  to  the  ward,  are  under  the  obligation 
of  giving  him  support,  reconvening  them  judicially  if  necessary,  in  order 
to  force  them  to  do  so. 

411  etseq. 

Art.  523.  Continued  negligence  on  the  part  of  the  tutor  in  providing 
for  the  congruous  support  and  education  of  the  ward,  is  a  sufficient  mo- 
tive to  relieve  him  from  the  tutorship. 

468  par.  3. 


123 


TITLE  XXVI. 

Special  Rules  Relating  to  the  Curatorship  of  a  Minor. 

Art.  524.  The  curator  ship  of  a  minor,  of  which  this  Title  treats,  is  that 
to  which  an  emancipated  adult  is  subject  by  reason  of  his  age  only. 

Art.  525.  A  minor  who  has  obtained  qualification  as  to  age  cannot 
be  given  a  curator.     None  of  the  provisions  of  this  Title  applies  to  him. 

339>  343- 

Art.  526.  An  adult  minor  having  no  curator,  must  request  the  ap- 
pointment of  one  of  the  Judge  or  Prefect,  designating  the  person  desired. 

If  the  minor  should  not  make  this  request,  the  relatives  may  do  so; 
but  the  designation  of  the  person  shall  always  be  made  by  the  minor  or 
by  the  Judge  or  Prefect  in  his  stead. 

The  Judge  or  Prefect,  after  hearing  the  defender  of  minors,  shall  accept 
the  person  designated  by  the  minor,  if  suitable. 

34,  1504  par.  3,  61,  1027. 

Art.  527.  The  curator  may,  with  regard  to  the  bringing  up  and  edu- 
cation of  the  minor,  exercise  the  powers  conferred  upon  the  tutor  in  the 
preceding  title  with  respect  to  those  under  the  age  of  puberty. 

5i7. 

Art.  528.  A  minor  under  curatorship  shall  have  the  same  administra- 
tive powers  as  a  son  of  a  family,  with  regard  to  the  property  acquired  by 
him  in  the  exercise  of  a  profession  or  industry. 

The  provisions  of  article  301,  regarding  the  son  of  a  family  and  the 
father,  apply  to  the  minor  and  the  curator. 

294,290,  1 504  par.  3. 

Art.  529.  The  curator  represents  the  minor,  in  the  same  manner  as 
the  tutor  represents  one  under  the  age  of  puberty. 

The  curator  may,  nevertheless,  if  he  should  deem  it  advisable,  entrust 
to  the  ward  the  administration  of  a  portion  of  his  own  property ;  but  he 
must  authorize,  under  his  liability,  the  acts  of  the  ward  in  this  adminis- 
tration. 

The  authority  shall  be  presumed  for  all  ordinary  acts  connected  there- 
with. 


480  et  seq.,  66  pars.  2  and  3,21 58. 


124 

Art.  530.  The  ward  shall  have  a  right  to  petition  for  the  intervention 
of  the  defender  of  minors,  when  any  of  the  acts  of  the  curator  is  to  his 
manifest  prejudice ;  and  the  defender,  if  he  should  find  the  claim  to  be 
well  founded,  shall  apply  to  the  Judge  or  Prefect. 


TITLE  XXVII. 

Special  Rules  Relating  to  the  Curatorsliip  of  Spendthrifts. 

Art.  531.  Persons  who  by  reason  of  being  prodigals  or  spendthrifts, 
shall  have  been  interdicted  from  administering  their  property,  shall  be 
given  a  legal  curator,  and  in  the  absence  of  the  latter,  a  dative  curator. 

Such  curatorship  may  be  testamentary  in  the  case  of  article  540. 

443,  545  par.  2,  557. 

Art.  532.  The  proceedings  for  interdiction  may  be  instituted  by  the 
spouse  who  is  not  divorced  from  the  alleged  spendthrift,  by  any  of  his 
legitimate  relatives  by  consanguinity  to  the  fourth  degree,  by  his  parents, 
children  and  natural  brothers,  and  by  the  representative  of  the  Depart- 
ment of  Public  Prosecution  {Minisierio  Publico). 

The  representative  of  the  Department  of  Public  Prosecution  shall  be 
heard  even  in  the  cases  in  which  the  proceedings  for  interdiction  may  not 
have  been  instituted  by  him. 

533,6i. 

Art.  533.  If  the  alleged  spendthrift  be  a  foreigner,  the  proceedings 
may  also  be  instituted  by  the  proper  diplomatic  or  consular  official. 

57o. 

Art.  534.  The  prodigality  must  be  proved  by  repeated  acts  of  squan- 
dering which  manifest  a  total  lack  of  prudence. 

Habitual  gambling,  in  which  considerable  portions  of  the  patrimony 
are  risked ;  valuable  donations  without  adequate  cause ;  ruinous  expen- 
ditures, authorize  the  interdiction. 

1676. 


125 

Art.  535.  Until  a  decision  shall  be  rendered  in  the  proceedings,  the 
Judge  or  Prefect  may,  by  virtue  of  the  verbal  statements  of  the  relatives 
or  of  other  persons,  and  after  hearing  the  explanations  of  the  alleged 
spendthrift,  decree  a  provisional  interdiction. 

Art.  536.  The  decrees  of  provisional  and  absolute  interdiction  must 
be  recorded  in  the  office  for  the  registration  of  public  instruments  and 
made  known  to  the  public  by  announcements  published  in  the  \ '  Diario 
Oficial"  or  periodical  of  the  Nation,  and  by  notices  which  shall  be  posted 
in  at  least  three  of  the  most  frequent  localities  of  the  Territory.* 

The  registration  and  the  notice  must  be  confined  to  a  statement  that 
such  person,  designated  by  his  name,  surname  and  domicile,  does  not 
have  the  free  administration  of  his  property. 

Art.  537.  The  curatorship  shall  be  deferred : 

1.  To  the  husband  who  is  not  divorced,  if  the  wife  should  not  be  en- 
tirely separate  in  property. 

2.  To  the  legitimate  ascendants  or  natural  parents;  natural  married 
parents  cannot  fill  this  office. 

3.  To  the  legitimate  collaterals  to  the  fourth  degree,  or  to  the  natural 
brothers. 

The  Judge  or  Prefect  shall  be  at  liberty  to  select  in  each  class  desig- 
nated in  Nos.  2  and  3,  the  person  or  persons  appearing  to  him  most 
suitable. 

In  the  absence  of  the  aforementioned  persons,  dative  curatorship  shall 
lie. 

566,  55o>  539,  59i,  592,  457  last  paragraph.     61,  par.  2,  of  law  153 

of  1887. 

Art.  538.  The  curator  of  the  husband  shall  administer  the  conjugal 
partnership  as  long  as  it  subsists,  and  the  tutorship  or  curatorship  of  the 
minor  children  of  the  spendthrift. 

1814. 

Art.  539.  The  wife  cannot  be  the  curatrix  of  her  spendthrift  husband. 

But  if  she  should  be  over  twenty-one  years  of  age,  or  should  attain 
said  age  after  the  interdiction,  she  shall  be  entitled  to  demand  separation 
of  property. 

When  separate  in  property  she  shall  be  free  to  administer  it;  but  in 
order  to  alienate  or  mortgage  the  real  property,  she  shall  need  first  a 
decree  of  the  court. 

587,  550  No.  1,  551,  592,  190,  200,  204,  189,  1810. 

*  The  Code  of  Chile  says:  "  .  .  posted  in  at  least  three  of  the  most  frequented 
localities     .     .     . " 


126 

Art.  540.  If  the  father  or  mother  having  the  curatorship  of  the  spend- 
thrift child  should  die,  they  may  appoint  by  testament  the  person  who 
is  to  succeed  them  in  the  guardianship. 

445- 

Art.  541.  The  spendthrift  shall  have  the  right  to  appeal  to  the  court 
when  the  acts  of  the  curator  are  disagreeable  or  prejudicial  to  him,  in 
order  that  the  proper  legal  remedy  may  be  had. 

630  par.  2. 

Art.  542.  The  spendthrift  shall  always  preserve  his  liberty  and  shall 
have  for  his  personal  expenses  the  free  disposition  of  a  sum  of  money,  in 
proportion  to  his  income,  and  fixed  by  the  Judge  or  Prefect. 

Only  in  extreme  cases  can  the  curator  be  authorized  himself  to  pro- 
vide for  the  support  of  the  spendthrift,  and  procure  him  the  necessary 
objects. 

Art.  543.  The  spendthrift  shall  be  rehabilitated  for  the  administra- 
tion of  his  property,  if  it  be  judged  that  he  can  do  so  properly ;  and  after 
having  been  rehabilitated,  the  interdiction  may  be  renewed,  if  cause  there- 
for should  arise. 

556. 

Art.  544.  The  provisions  indicated  in  the  preceding  article  shall  be 
decreed  by  the  Judge  or  Prefect,  with  the  same  formalities  as  for  the 
original  interdiction ;  and  they  shall  be  followed  by  the  record  and  notice 
prescribed  by  article  536,  which  in  the  case  of  the  rehabilitation  shall  be 
limited  to  a  statement  that  such  person  (designating  his  name,  surname 
and  domicile)  has  the  free  administration  of  his  property. 


127 


TITLE  XXVI II. 

Special  Rules  Relating  to  the  Curatorship  of  the  Insane. 

Art.  545.  An  adult  who  is  in  a  habitual  state  of  insanity  must  be  de- 
prived of  the  administration  of  his  property,  even  though  he  should  have 
lucid  intervals. 

The  curatorship  of  a  demented  person  may  be  testamentary,  legal  or 
dative. 

553,  554,  1061  No.  2,  443,  531  par.  2,  557. 

Art.  546.  When  an  insane  child  shall  have  reached  the  age  of  puberty, 
the  father  of  the  family  may  continue  caring  for  his  person  and  property 
till  majority ;  upon  the  attainment  of  which,  proceedings  for  interdiction 
must  be  instituted. 

1027. 

Art.  547.  The  tutor  of  an  insane  person  cannot  afterwards  exercise 
the  curatorship  without  the  judicial  interdiction  first  taking  place,  ex- 
cept for  the  time  necessary  to  secure  the  interdiction. 

The  same  shall  be  necessary  when  the  insanity  shall  occur  while  the 
minor  is  under  curatorship. 

432,  548  par.  2,  574. 

Art.  548.  Proceedings  for  the  interdiction  of  an  insane  person  may  be 
brought  by  the  same  persons  who  have  the  right  to  do  so  in  the  case  of  a 
spendthrift. 

They  must  be  instituted  by  the  curator  of  a  minor  becoming  insane 
during  the  curatorship. 

But  if  the  insanity  should  be  violent,  or  the  insane  person  should  cause 
serious  inconvenience  to  the  inhabitants,  the  Prefect  or  any  resident  of 
the  town  may  also  institute  the  proceedings. 

532,  533,  1027. 

Art.  549.  The  Judge  or  Prefect  shall  secure  information  regarding 
the  prior  life  and  habitual  conduct  of  the  alleged  insane  person,  and 
shall  hear  the  opinion  of  physicians  in  whom  he  has  confidence  as  to  the 
existence  and  nature  of  the  insanity.  The  provisions  of  articles  535 
and  536  apply  to  cases  of  insanity. 

Art.  550.  The  curatorship  of  the  insane  person  shall  be  deferred : 
1.  To  his  spouse  who  is  not  divorced;  but  if  the  insane  wife  should 


128 

be  separate  in  property,  according  to  articles  200  and  201,  an  associate 
curator  shall  be  appointed  with  the  husband  for  the  administration  of 
that  property  to  which  the  separation  extends. 

2.  To  his  legitimate  descendants. 

3.  To  his  legitimate  ascendants. 

4.  To  his  natural  parents  or  sons;  married  natural  parents  cannot 
exercise  this  office. 

5.  To  his  legitimate  collaterals  to  the  fourth  degree;  or  to  his  natural 
brothers. 

The  Judge  or  Prefect  shall  select  in  each  class  of  those  designated  in 
Nos.  2,  3,  4  and  5,  the  person  or  persons  whom  he  may  consider  most 
suitable. 

In  the  absence  of  all  the  aforementioned  persons,  dative  curatorship 
shall  lie. 

587  No.  2,  539,  434,  582,  537  No.  2,  591,  457  last  par.     61  par.  2 
of  law  153  of  1887. 

Art.  551.  The  curatrix  of  her  husband  who  is  insane,  shall  have  the 
administration  of  the  conjugal  partnership  and  the  guardianship  of  their 
minor  children. 

If  by  reason  of  her  minority  or  another  impediment  she  should  not 
be  deferred  the  curatorship  of  her  insane  husband,  she  may  at  her  option, 
upon  the  cessation  of  the  impediment,  request  such  curatorship  or  the 
separation  of  property. 

190,  1814,  538. 

Art.  552.  If  two  or  more  curators  should  be  appointed  to  the  insane 
person,  the  immediate  care  of  the  person  may  be  entrusted  to  one  of 
them,  and  the  administration  of  the  property  left  to  the  others. 

The  immediate  care  of  the  person  of  the  insane  individual  shall  not 
be  granted  to  any  person  who  may  be  called  to  inherit  from  him,  unless 
it  be  his  father  or  mother,  or  his  spouse. 

5i9- 

Art.  553.  The  acts  and  contracts  of  the  insane  person,  subsequent  to 
the  interdiction,  shall  be  null ;  even  though  it  be  alleged  that  they  were 
executed  or  entered  into  during  a  lucid  interval. 

And,  on  the  contrary,  acts  and  contracts  executed  or  entered  into 
prior  to  the  interdiction,  shall  be  valid;  unless  it  be  proved  that  the 
person  executing  or  celebrating  them  was  insane  at  that  time. 

598. 


129 

Art.  554.  An  insane  person  shall  not  be  deprived  of  his  personal 
liberty,  excepting  in  the  cases  in  which  there  is  ground  to  fear  that 
taking  advantage'  thereof  he  would  injure  himself,  or  cause  danger  or 
serious  inconvenience  to  others. 

Nor  can  he  be  taken  to  an  insane  asylum,  nor  locked  up,  nor  tied,  not 
even  for  a  moment,  until  on  the  petition  of  the  curator  or  of  any  person 
in  the  town,  judicial  authority  is  obtained  to  carry  out  any  of  these 
measures. 

Art.  555.  The  fruits  of  his  property,  and,  in  a  necessary  case  and  with 
the  authority  of  the  court,  the  capital  shall  be  mainlv  used  in  allevia- 
ting his  condition  and  securing  his  recovery. 

559- 

Art.  556.  An  insane  person  may  be  rehabilitated  for  the  administra- 
tion of  his  property  if  it  shall  appear  that  he  has  permanently  recovered 
his  reason ;  and  he  may  also  be  disqualified  again  for  good  cause. 

In  these  cases  the  provisions  of  articles  543  and  544  shall  be  observed. 


130 


TITLE  XXIX. 

Special  Rules  Relating  to  the  Curatorship  of  Deaf  Mutes. 

Art.  557.  The  curatorship  of  a  deaf  mute,  who  has  attained  the  age 
of  puberty,  may  be  testamentary,  legal  or  dative. 

443,  53i  par.  2,  545  par.  2. 

Art.  558.  Articles  546,  547,  550,  551  and  552  apply  to  deaf  mutes.* 
Art.  559.  The  fruits  of  the  property  of  the  deaf  mute  and,  in  a  neces- 
sary case,  with   judicial  authorization,  the  capitals,  may  be  specially 
employed  in  alleviating  his  condition  and  in  procuring  him  the  proper 
education. 

555- 

Art.  560.  The  curatorship  shall  cease  when  the  deaf  mute  shall  have 
become  capable  of  understanding  and  making  himself  understood  in 
writing,  if  he  himself  requests  it,  and  shall  have  sufficient  intelligence 
for  the  administration  of  his  property ;  with  regard  to  which  the  Judge 
or  Prefect  shall  secure  competent  testimony. 


*  This  article  has  been  substituted  by  article  23  of  law  57  of  1887. 


i3i 

TITLE  XXX. 
Curatorsbip  Ad  Bona. 

Art.  561.  In  general,  the  appointment  of  a  curator  of  the  property  of 
an  absentee  shall  take  place  when  the  following  conditions  are  present : 

1 .  That  his  whereabouts  is  unknown,  or  at  least  that  he  has  ceased  to 
be  in  communication  with  his  people,  and  that  in  the  absence  of  com- 
munication the  said  absentee  or  third  persons  will  suffer  grave  prejudice. 

2.  That  he  has  not  appointed  an  attorney-in-fact,  or  has  appointed 
him  for  special  things  or  affairs  only. 

443,  567- 

Art.  562.  This  appointment  may  be  requested  by  the  same  persons 
who  have  the  power  of  instituting  proceedings  for  the  interdiction  of  an 
insane  person. 

Furthermore,  the  creditors  of  the  absentee  shall  have  the  right  to  re- 
quest that  a  curator  ad  bona  be  appointed  to  answer  their  suits. 

Among  absentees  is  included  a  debtor  who  absconds. 

548,  532,  533- 

Art.  563.  vSuch  persons  may  be  appointed  to  the  curatorship  of  the 
property  of  an  absentee  as  may  be  appointed  to  the  curatorship  of  an 
insane  person  in  accordance  with  article  537,*  and  the  same  order  of 
preference  shall  be  observed  among  them. 

The  Judge  or  Prefect  may,  nevertheless,  ignore  said  order  on  the  peti- 
tion of  the  legitimate  heirs  or  of  the  creditors,  if  he  should  deem  it  advis- 
able. 

He  may  also  appoint  more  than  one  curator,  and  divide  the  adminis- 
tration among  them,  in  the  case  of  extensive  property  situated  in  differ- 
ent departments. 

Art.  564.  The  defender  of  absentees  {defensor  de  ausentes)  shall  inter- 
vene in  the  appointment. 

Art.  565.  If  the  absentee  shall  have  left  a  wife  not  divorced,  the  pro- 
visions for  such  cases  of  the  Title  Of  Conjugal  Partnership  shall  be  ob- 
served. 

Art.  566.  If  the  absent  person  be  a  married  woman,  the  husband 
cannot  be  curator,  except  according  to  the  terms  of  article  537,  number  1 . 

Art.  567.  An  attorney  in  fact  constituted  for  certain  acts  or  affairs,  is 
subordinate  to  the  curator ;  who,  nevertheless,  cannot  act  in  contra ven- 


*  Article  55o"should  have  been  cited,  as  is  done  in  the  Code  of  Chile. 


132 

tion  of  the  instructions  given  by  the  absentee  to  the  attorney,  except 
with  the  authority  of  the  Judge  or  Prefect. 

561  No.  2. 

Art.  568.  If  the  whereabouts  of  the  absentee  be  unknown,  it  -shall  be 
the  first  duty  of  the  curator  to  ascertain  it. 

When  the  whereabouts  of  the  absentee  shall  be  known,  the  curator 
shall  do  all  that  lies  in  his  power  to  communicate  with  him. 

Art.  569.  A  curator  shall  be  appointed  for  a  vacant  inheritance,  that 
is  to  say,  for  the  property  of  a  deceased  person  whose  inheritance  has  not 
been  accepted. 

The  curatorship  of  a  vacant  inheritance  shall  be  dative. 

.     1289  par.  4,  1297,  443  par.  4. 

Art.  570.  If  the  deceased  person  for  whose  estate  it  is  necessary  to 
appoint  a  curator,  should  have  foreign  heirs,  the  Consul  of  the  Nation  of 
the  latter  shall  have  the  right  to  propose  the  curator  or  curators  who  are 
to  have  the  custody  of  and  administer  the  property. 

533- 

Art.  571.  The  Court  shall  confirm  the  curatorship  of  the  curator  or 
curators  proposed  by  the  consul,  if  they  be  suitable  persons;  and  on  the 
petition  of  the  creditors,  or  of  other  persons  interested  in  the  succession, 
he  may  add  to  said  curator  or  curators  one  or  more  others,  according  to 
the  amount  and  situation  of  the  property  composing  the  inheritance. 

Art.  572.  After  the  expiration  of  four  years  from  the  date  of  the  death 
of  the  person  whose  estate  is  under  curatorship,  the  Judge  or  Prefect,  on 
the  petition  of  the  curator  and  after  an  investigation  into  the  matter,  may 
order  that  all  the  hereditary  property  in  existence  be  sold,  and  that  the 
proceeds  be  placed  out  at  interest  with  adequate  security,  and  if  there  be 
no  security,  they  be  turned  into  the  coffers  of  the  Nation  (the  National 
Treasury  of  the  Republic) . 

483,484,575^^.,  105. 

Art.  573.  Property  which  will  fall  to  the  posthumous  child,  if  born 
alive,  and  within  the  proper  time,  shall  be  in  charge  of  the  curator  who 
may  have  been  designated  for  this  purpose  by  the  testament  of  the  father, 
or  of  a  curator  appointed  by  the  Judge  or  Prefect,  on  the  petition  of  the 
mother,  or  on  the  petition  of  any  of  the  persons  who  are  to  succeed  to 
said  property,  if  the  posthumous  child  does  not  succeed  thereto. 

Two  or  more  curators  may  be  appointed  if  advisable. 

92,  237  par.  2,  232,  233. 


133 

Art.  574.  The  person  designated  in  the  testament  of  the  father  for  the 
tutorship  of  the  child,  shall  be  considered  as  designated  also  for  the  cura- 
torship  of  the  eventual  rights  of  such  child,  if  the  father  should  die 
while  the  child  is  still  in  its  mother's  womb. 

66,  444. 

Art.  575.  The  curator  of  the  property  of  an  absent  person,  the  curator 
of  a  vacant  inheritance,  the  curator  of  the  eventual  rights  of  one  not  yet 
born,  are  subject  in  their  administration  to  all  the  restrictions  prescribed 
for  tutors  or  curators,  and  furthermore,  they  are  prohibited  from  exe- 
cuting any  administrative  acts  other  than  those  of  mere  custody  and 
preservation,  and  the  acts  necessary  for  the  collection  of  the  credits  and 
payment  of  the  debts  of  their  respective  principals. 

433,  1297,  483,  484,  521,  577,  2158. 

Art.  576.  They  are  especially  prohibited  from  altering  the  form  of 
property,  from  contracting  loans  and  alienating  even  the  movable  prop- 
erty which  is  not  corruptible,  unless  such  alienation  should  be  made  in 
the  ordinary  course  of  the  business  of  the  absentee,  or  that  the  payment 
of  debts  should  make  it  necessary. 

2158. 

Art.  577.  Notwithstanding  the  provisions  of  the  preceding  articles, 
the  acts  forbidden  to  curators  ad  bona  therein,  shall  be  valid,  if  the  neces- 
sity or  utility  thereof  being  established,  the  Judge  or  Prefect  should  first 
approve  them. 

The  owner  of  the  property  shall  have  the  right  to  have  the  nullity  of 
any  of  such  acts  declared,  which  have  not  been  authorized  by  the  Judge 
or  Prefect;  and  the  nullity  having  been  declared,  the  curator  shall  be 
liable  for  any  prejudice  which  the  said  person  or  third  persons  may  have 
suffered  therefrom. 

Art.  578.  It  shall  be  the  duty  of  curators  ad  bona  to  enforce  the  rights 
and  conduct  the  defense  in  court  of  the  persons  they  respectively  repre- 
sent; and  the  persons  having  credits  against  the  property  may  enforce 
the  same  against  the  respective  curators. 

1289,  par.  2. 

Art.  579.  The  curatorship  of  the  rights  of  the  absentee  expires  upon 
his  return;  or  by  the  fact  of  a  general  agent  duly  constituted  taking 
charge  of  his  business ;  or  as  a  result  of  his  death ;  or  by  a  decree  grant- 
ing provisional  possession  in  the  case  of  disappearance. 


134 

The  curatorship  of  a  vacant  inheritance  ceases  by  the  acceptance  of 
the  inheritance,  or  in  the  case  of  article  572,  by  the  deposit  of  the  pro- 
ceeds of  the  sale  in  the  Treasury  of  the  Nation. 

99. 

Art.  580.  The  curatorship  of  the  eventual  rights  of  a  person  about  to 
be  born,  ceases  as  "a  result  of  the  birth. 

Every  curatorship  of  property  ceases  by  the  extinction  or  complete 
inversion  of  the  property  affected. 

433- 


135 

TITLE  XXXI. 

Of  Associate  Curators. 

Art.  581.  Associate  curators  (curadores  adjuntos)  have  over  the  prop- 
erty placed  in  their  charge,  the  same  administrative  powers  as  tutors, 
unless  they  be  associated  to  curators  ad  bona. 

In  such  case  they  shall  have  no  powers  but  those  of  curators  ad  bona. 

434. 

Art.  582.  Associate  curators  are  independent  of  the  respective  parents, 
husbands  or  guardians. 

The  subsidiary  liability  imposed  by  article  508  upon  tutors  or  curators 
who  do  not  administer,  is  extended  to  the  respective  parents,  husbands 
or  guardians  with  respect  to  associate  curators. 

550  No.  1,  452. 


TITLE  XXXII. 

Of  Special  Curators. 

Art.  583.  Special  curatorships  are  dative. 

Curators  for  suits  or  ad  litem  are  appointed  by  the  Court  or  Prefect 
taking  cognizance  of  the  suit. 

435,  443,  537,  and  550. 

Art.  584.  A  special  curator  is  not  obliged  to  prepare  an  inventory, 
but  only  to  give  a  receipt  for  the  documents,  sums  or  effects  placed  at 
his  disposal  for  the  discharge  of  his  duties,  of  which  he  shall  render  a 
faithful  and  true  account. 

464  par.  2,  470,  465  No.  3. 


136 


TITLE  XXXIII. 

Incapacities  for  and  Excuses  From  Exercising  Tutorship  or 

Curatorship. 

Art.  585.  There  are  persons  forbidden  by  law  from  being  tutors  or 
curators,  and  persons  permitted  by  law  to  be  excused  from  discharging 
a  tutorship  or  curatorship. 


Chapter  i. 
Of  Incapacities. 

Paragraph  i. 

Rules  Relating  to  Physical  and  Moral  Defects. 

Art.  586.  The  following  are  incapable  of  exercising  tutorship  or 
curatorship : 

1.  The  blind. 

2.  The  dumb.  , 

3.  The  insane,  even  though  not  under  interdiction. 

4.  Bankrupts,  as  long  as  they  shall  not  have  satisfied  their  creditors. 

5.  Those  deprived  from  the  administration  of  their  own  property  by 
reason  of  prodigality. 

6.  Those  having  no  domicile  in  the  Nation. 

7.  Those  who  can  neither  read  nor  write,  with  the  exception  of  the 
father  or  mother  called  upon  to  exercise  the  legal  or  testamentary  guar- 
dianship of  their  legitimate  or  natural  children. 

8.  Those  of  notorious  bad  conduct. 

9.  Those  judicially  sentenced  to  a  penalty  of  those  designated  in 
article  315,  No.  4,  even  though  they  may  have  been  pardoned. 

10.  A  woman  who  has  been  divorced  for  adultery. 

11.  He  who  has  been  deprived  of  the  paternal  power,  according  to 
article  310. 

12.  Those  who  by  reason  of  fraudulent  or  careless  administration 
were  removed  from  a  previous  guardianship,  or  in  the  proceedings  sub- 
sequent thereto  were,  by  reason  of  fraud  or  grave  fault,  sentenced  to 
indemnify  the  ward. 

1329,  2189  No.  6,  1061. 


137 

Paragraph  2. 

Rules  Relating  to  Sex. 

Art.  587.  Women  are  incapable  of  exercising  tutorship  or  curator- 
ship,  with  the  following  exceptions : 

1 .  A  woman  who  has  no  husband  living,  may  be  the  guardian  of  her 
legitimate  descendants  or  of  her  natural  children. 

2.  A  woman  who  is  not  divorced  may  be  the  guardian  of  her  husband 
who  is  insane  or  a  deaf  mute. 

539- 

3.  A  woman,  during  the  life  of  her  husband,  may  be  the  guardian  of 
the  common  children,  when  in  accordance  with  Chapter  4,  Title  Of  mar- 
riage agreements  and  of  the  conjugal  partnership,  the  administration  of 
the  conjugal  partnership  is  entrusted  to  her. 

4.  The  adopting  mother  may  be  the  guardian  of  the  adoptive  child. 
These  exceptions  do  not  exclude  the  disqualifications  arising  from 
a  cause  other  than  the  sex. 

602  No.  5,  599,  550,  551,  558,  539,  1814,439.     53  par.  2  of  law  153 
of  1887. 

Paragraph  3. 

Rules  Relating  to  Age. 

Art.  588.  Those  who  have  not  attained  the  age  of  twenty-one  years 
cannot  be  tutors  or  curators,  even  though  they  shall  have  obtained  their 
qualification  as  to  age. 

Nevertheless,  if  a  tutorship  or  guardianship  be  deferred  to  an  ascendant 
or  descendant  who  has  not  attained  the  age  of  twenty-one  years,  it  shall 
not  be  conferred  upon  him  until  he  attains  said  age,  and  a  provisional 
one  shall  be  appointed  ad  interim. 

The  same  action  shall  be  taken  in  the  case  of  a  testamentary  tutor  or 
curator  who  shall  not  have  attained  the  age  of  twenty-one  years. 

But  the  appointment  of  a  tutor  or  curator  who  is  a  minor  shall  not  be 
valid,  if,  upon  attaining  the  age  of  twenty-one  years,  he  would  be  obliged 
to  exercise  the  tutorship  or  curatorship  for  less  than  two  years  only. 

34  par.  2,  339,  1504  par.  3,  1329,  461. 

Art.  589.  If  there  be  no  certainty  as  to  the  age,  it  shall  be  judged 
according  to  article  400,  and  if,  consequently,  the  charge  be  conferred 
upon  the  tutor  or  curator  appointed,  it  shall  be  valid  and  subsist,  what 
ever  the  age  really  be. 


i38 

Paragraph  4. 
Rules  Relating  to  Family  Relations. 

Art.  590.  The  step-father  cannot  be  the  tutor  or  curator  of  his  step- 
son or  daughter. 

Art.  591.  The  husband  cannot  be  the  tutor  or  curator  of  his  natural 
children,  without  the  consent  of  his  wife. 

537  No.  2,  550  No.  4.     61  par.  2  of  law  153  of  1887. 

Art.  592.  The  son  cannot  be  the  curator  of  his  spendthrift  father. 
539,  55o  Nos.  2  and  4,  594  last  par. 

Paragraph  5. 

Rules  Relating  to  the  Opposition  of  Interests  or  Difference  of  Religion 
Between  the  Guardian  and  the  Ward. 

Art.  593.  He  who  disputes  the  civil  status  of  a  person  cannot  be  the 
tutor  or  curator  of  such  person. 

346. 

Art.  594.  The^creditors  or  debtors  of  a  person,  or  persons  litigating 
against  him,  in  their  own  or  another's  interest,  cannot  alone  be  the  tutors 
or  curators  of  such  person. 

The  Judge  or  Prefect,  as  may  appear  most  advisable  to  him,  may 
appoint  other  tutors  or  curators  to  administer  jointly,  or  shall  declare 
them  disqualified  to  act. 

The  provisions  of  this  article  shall  not  apply  to  the  spouse  and  to  the 
ascendants  and  descendants  of  the  ward. 

Art.  595.  The  provisions  of  the  preceding  article  do  not  apply  to  the 
testamentary  tutor  or  curator,  if  it  be  established  that  the  testator  had 
knowledge  of  the  credit,  debt  or  litigation,  at  the  time  of  appointing 
said  tutor  or  curator. 

Nor  do  they  extend  to  the  credits,  debts  or  litigation  of  slight  impor- 
tance in  the  opinion  of  the  Judge  or  Prefect. 

Art.  596.  Those  who  profess  a  religion  different  from  that  in  which 
the  ward  must  be  or  has  been  brought  up,  cannot  be  the  tutors  or  cura- 
tors of  the  latter,  unless  they  be  accepted  by  the  ascendants,  and  in 
default  of  the  latter  by  the  nearest  relatives  by  consanguinity. 


139 

Paragraph  6. 
Rules  Relating  to  Incapacities  Occurring  Subsequently  to  Appointment. 

Art.  597.  The  aforementioned  causes  of  incapacity  which  shall  occur 
during  the  exercise  of  the  tutorship  or  curatorship,  shall  put  an  end 
thereto. 

Art.  598.  The  insanity  of  the  tutor  or  curator  shall  make  all  acts 
executed  during  the  same  null  and  void,  even  though  he  may  not  have 
been  placed  in  interdiction. 

553- 

Art.  599.  If  a  female  legitimate  ascendant  or  natural  or  adoptive 
mother,  tutrix  or  curatrix,  should  desire  to  marry,  she  shall  first  an- 
nounce it  to  the  Judge  or  Prefect  in  order  that  he  may  appoint  the  per- 
son who  is  to  succeed  her ;  and  should  she  not  do  so,  she  and  her  husband 
shall  be  liable  for  the  administration,  in  solidum,  the  liability  of  the 
husband  extending  even  to  the  acts  of  the  tutrix  or  curatrix  prior  to  the 
marriage. 

175,  448,  1331,  2502  No.  6,  1568  par.  2. 

Paragraph  7. 
General  Rules  Regarding  Incapacities. 

Art.  600.  Tutors  or  curators  who  shall  have  concealed  the  causes  of 
incapacity  which  existed  at  the  time  the  appointment  was  deferred  to 
them,  or  which  occurred  subsequently,  in  addition  to  being  subject  to  all 
the  liabilities  of  their  administration,  shall  forfeit  the  emoluments  for  the 
time  that  they  exercised  the  charge,  knowing  of  the  incapacity. 

Ignored  causes  of  incapacity  do  not  vitiate  the  acts  of  the  tutor  or 
curator ;  but,  if  known  to  him,  they  shall  put  an  end  to  the  tutorship  or 
curatorship. 

515- 

Art.  601.  A  guardian  who  believes  himself  incapacitated  from  exer- 
cising the  tutorship  or  curatorship  deferred  to  him,  shall  be  allowed  for  the 
purpose  of  instituting  proceedings  as  to  his  incapacity,  the  same  terms  as 
are  allowed  in  proceedings  on  excuses,  prescribed  by  article  608. 

If  the  incapacity  should  occur  during  the  exercise  of  the  tutorship  or 
curatorship,  he  must  denounce  it  to  the  Judge  or  Prefect  within  three 
days  subsequent  to  the  date  upon  which  said  incapacity  may  have 


140 

begun  to  exist  or  he  may  have  had  notice  thereof ;  and  such  period  shall 
be  extended,  in  the  same  manner  as  the  term  of  thirty  days  prescribed  in 
article  608. 

The  incapacity  of  the  tutor  or  curator  may  also  be  denounced  to  the 
Judge  or  Prefect  by  any  of  the  relatives  by  consanguinity  of  the  ward, 
by  his  spouse,  and  even  by  any  person  in  the  town. 

1332. 

Chapter  2. 

Of  Excuses. 

Art.  602.  The  following  may  be  excused  from  tutorship  or  curator- 
ship: 

1 .  National  employees,  the  President  of  the  Union  and  those  discharg- 
ing judicial  functions. 

2.  The  administrators  and  collectors  of  national  revenues. 

3.  Those  who  are  obliged  to  fill  a  public  office  for  a  long  term,  at  a  con- 
siderable distance  from  the  territory  where  the  guardianship  is  to  be 
exercised. 

4.  Those  who  have  their  domicile  at  a  considerable  distance  from  said 
territory. 

5.  Women. 

587. 

6.  Those  who  are  suffering  from  a  serious  chronic  disease,  or  who  have 
attained  the  age  of  sixty-five  years. 

7.  Poor  persons  who  are  under  the  necessity  of  living  from  their  per- 
sonal daily  work. 

8.  Those  who  are  already  exercising  two  guardianships;  and  those 
who  being  married  or  having  children,  exercise  one ;  but  special  curator- 
ships  shall  not  be  taken  into  consideration. 

The  Judge  or  Prefect  may  count  as  two  a  tutorship  or  curatorship 
which  is  very  complicated  or  burdensome. 

9.  Those  who  have  under  their  paternal  power  five  or  more  living 
children;  counting  also  those  who  have  died  in  an  engagement  during 
war,  under  the  flags  of  the  Union. 

585,  618,  1028,  1334,  1384. 

Art.  603.  In  the  case  of  the  preceding  article,  No.  8,  he  who  shall  ex- 
ercise two  or  more  guardianships  of  persons  who  are  not  his  children, 
shall  have  the  right  to  demand  that  he  be  relieved  of  one  of  them,  in  order 
to  undertake  the  guardianship  of  his  own  child ;  but  he  cannot  excuse 
himself  from  the  latter. 


I4I 

Art.  604.  The  excuse  of  No.  9,  article  602,  cannot  be  pleaded  for  the 
purpose  of  being  relieved  of  the  tutorship  or  curatorship  of  the  son. 

Art.  605.  If  the  person  pleading  as  an  excuse  that  he  cannot  find  sure- 
ties should  own  real  property,  such  excuse  shall  not  be  allowed ;  in  such 
case  he  shall  be  obliged  to  constitute  a  mortgage  thereon  for  an  amount 
estimated  as  sufficient  to  answer  for  his  administration. 

466,  2363  par.  2. 

Art.  606.  He  who  shall  have  exercised  the  guardianship  of  the  same 
ward  for  ten  or  more  years  continuously,  as  tutor  or  curator,  or  as  tutor 
or  curator  successively,  may  be  excused  from  continuing  the  exercise 
thereof ;  but  this  excuse  cannot  be  pleaded  by  the  spouse,  nor  by  a  legiti- 
mate ascendant  or  descendant,  nor  by  a  natural  father  or  son. 

Art.  607.  The  excuses  mentioned  in  the  preceding  articles  must  be 
pleaded  by  the  person  desiring  to  take  advantage  thereof,  at  the  time  of 
deferring  the  guardianship ;  and  shall  be  admissible  if  they  should  occur 
during  the  same. 

Art.  608.  Excuses  for  not  accepting  a  guardianship  deferred,  must  be 
pleaded  within  the  following  terms : 

If  the  tutor  or  curator  appointed  is  within  the  territory  in  which  the 
Judge  or  Prefect  who  is  to  take  cognizance  thereof  resides,  he  shall  plead 
them  within  thirty  days  after  the  date  of  the  notification  of  his  appoint- 
ment;  and  if  he  be  without  such  territory,  this  term  shall  be  extended 
four  days  for  every  fifty  kilometers  of  distance  between  the  city  which  is 
the  capital  of  said  territory  and  the  actual  residence  of  the  tutor  or  cura- 
tor appointed. 

601. 

Art.  609.  Any  delay  exceeding  the  legal  term,  and  which  could  have 
been  avoided  with  average  diligence,  shall  impose  upon  the  tutor  or 
curator  the  liability  for  the  damages  which  his  delay  in  taking  charge  of 
the  tutorship  or  curatorship  might  entail;  and  it  shall  also  make  his 
voluntary  excuses  inadmissible,  unless  it  should  be  to  the  interest  of  the 
ward  to  accept  them. 

Art.  610.  Causes  for  excuse  arising  during  the  tutorship,  do  not  pre- 
scribe on  account  of  any  delay  in  pleading  them. 

Art.  611.  If  the  tutor  or  curator  appointed  shall  be  in  a  foreign 
country,  and  it  is  not  known  when  he  will  return,  or  if  his  whereabouts 
be  unknown,  the  Judge  or  Prefect  may,  according  to  the  circumstances, 
fix  a  term  within  which  the  tutor  or  curator  is  to  present  himself  to  take 
charge  of  the  tutorship  or  curatorship,  or  be  excused  therefrom;  and 
upon  the  expiration  of  the  term  he  may,  according  to  the  circumstances, 
extend  it  or  declare  the  appointment  invalid,  which  appointment  shall 


142 

not  be  renewed,  even  though  the  tutor  or  curator  should  subsequently 
appear. 

Chapter  3. 
Rules  Common  to  Incapacities  and  Excuses. 

Art.  612.  Proceedings  on  the  incapacities  or  excuses  pleaded  by  the 
guardian  must  be  conducted  with  the  respective  counsel. 

Art.  613.  If,  at  first  instance,  the  Judge  or  Prefect  should  not  admit 
the  causes  of  incapacity  pleaded  by  the  guardian,  or  should  not  except 
his  excuses,  and  if  the  guardian  should  not  appeal,  or  the  appellate  court 
should  confirm  the  decision  of  the  Judge  or  Prefect  a  quo,  the  guardian 
shall  be  liable  for  any  damages  resulting  to  the  ward  through  his  delay  in 
assuming  the  guardianship. 

This  liability  shall  not  lie,  if  the  tutor  or  curator,  to  exonerate  himself 
therefrom,  should  offer  to  undertake  the  tutorship  or  curatorship 
temporarily. 

1028,  465  No.  2. 


143 


TITLE  XXXIV. 

Of  the  Compensation  of  Tutors  and  Curators. 

ArTi  614.  The  tutor  or  curator  shall  receive,  as  a  general  rule,  as  com- 
pensation for  his  work,  one-tenth  of  the  fruits  of  that  property  of  his 
ward  which  he  administers. 

If  there  should  be  a  number  of  tutors  or  curators  administering  jointly, 
the  tenth  shall  be  divided  among  them  in  equal  parts.  But  if  one  of  the 
guardians  should  discharge  functions  which  do  not  include  the  receipt 
of  fruits,  the  Judge  or  Prefect  shall  deduct  from  the  tenth  part  of  the 
others  the  compensation  which  he  may  consider  it  just  to  allow  him. 

He  may  also  increase  the  tenth  part  of  a  guardian,  deducting  this  in- 
crease from  the  tenth  of  the  others,  when  there  is  a  manifest  lack  of  pro- 
portion between  the  respective  services  and  emoluments. 

These  two  orders  shall  be  made  by  the  Judge  or  Prefect,  in  a  necessary 
case,  on  the  petition  of  the  respective  guardian,  and  with  a  hearing  of  the 
others. 

620,  622  to  626. 

Art.  615.  The  distribution  of  the  tenth  part  shall  be  made  according 
to  the  general  rules  of  the  preceding  article  and  of  its  first  paragraph, 
provided  that  it  be  not  changed  by  agreement  of  the  parties  or  by  a 
decree  of  the  Judge  or  Prefect,  in  accordance  with  the  second  and  third 
paragraphs  thereof ;  nor  shall  the  new  distribution  be  effective  but  from 
the  date  of  the  agreement  or  of  the  decree. 

Art.  616.  The  necessary  expenses  incurred  by  the  tutors  or  curators 
in  the  discharge  of  their  duties  shall  be  allowed  them  separately,  and 
shall  not  be  included  in  the  tenth. 

A.RT.  617.  Any  allowance  expressly  made  to  the  testamentary  tutor 
or  curator  as  compensation  for  his  services,  shall  be  imputed  to  that  part 
of  the  tenth  of  the  fruits  due  said  tutor  or  curator ;  and  if  it  should  be 
less,  he  shall  have  the  right  to  have  his  remuneration  completed;  but 
if  it  should  exceed  said  tenth,  he  shall  not  be  obliged  to  pay  the  excess 
if  the  latter  is  within  the  quota  of  property  of  which  the  testator  could 
freely  dispose. 

1242. 

Art.  618.  Accepted  excuses  deprive  the  testamentary  tutor  or  curator 
of  the  allowance  which  may  have  been  made  him  for  his  services. 


144 

But  excuses  arising  subsequently,  shall  deprive  him  of  a  proportionate 
part  only. 

1 128,  1028,  1334  par.  2,  1384,  585,  619. 

Art.  619.  Pre-existing  incapacities  deprive  the  guardian  of  any  right 
to  the  aforementioned  allowance. 

If  the  incapacity  should  occur  without  the  act  or  fault  of  the  guardian, 
or  if  he  should  die  during  the  guardianship,  it  shall  not  be  necessary  to  re- 
turn the  thing  allowed  either  in  whole  or  in  part. 

597,  618. 

Art.  620.  If  a  provisional  tutor  or  curator  relieves  a  regular  tutor  or 
curator  of  all  his  duties,  the  latter' s  full  tenth  shall  belong  to  the  former 
for  the  entire  period  of  the  duration  of  his  administration ;  but  if  the  reg- 
ular tutor  or  curator  should  retain  a  part  of  his  functions,  he  shall  also 
retain  a  proportionate  part  of  his  tenth  portion. 

If  the  remuneration  should  consist  in  a  hereditary  quota  or  legacy 
and  the  regular  incumbent  should  have  made  it  necessary  to  appoint  a 
provisional  one  for  a  justifiable  cause,  such  as  a  public  office  or  to  avoid 
some  serious  injury  to  his  interests,  he  shall  retain  his  inheritance  or 
legacy  in  full,  and  the  provisional  one  shall  receive  one-tenth  of  the  fruits 
of  what  he  may  administer. 

Art.  621.  A  tutor  or  curator  who  shall  fraudulently  administer  or  who 
shall  violate  the  provisions  of  paragraph  13,  article  140,  loses  his  right  to 
the  tenth,  and  shall  be  under  the  obligation  of  making  restitution  of  all 
that  he  may  have  received  in  remuneration  for  his  guardianship. 

If  he  administer  carelessly,  he  shall  not  receive  the  tenth  part  of  the 
fruits  with  regard  to  that  part  of  the  property  which  through  his  negli- 
gence may  have  suffered  injury  or  a  considerable  reduction  in  producing 
capacity. 

In  either  case,  the  ward  is,  furthermore,  entitled  to  the  recovery  of 
damages. 

No.  13  of  art.  140,  cited,  has  been  repealed  by  art.  45  of  law  57  of 

1887. 

Art.  622.  If  the  fruits  of  the  patrimony  of  the  ward  should  be  so 
meager  that  they  are  hardly  sufficient  for  his  bare  subsistence,  the  tutor 
or  curator  shall  be  obliged  to  serve  gratuitously ;  if  the  ward  should  ac- 
quire more  property,  either  during  the  guardianship  or  thereafter,  the 
guardian  cannot  demand  anything  by  reason  of  the  tenth  pertaining  to 
the  former  time. 

614. 


145 

Art.  623.  The  guardian  shall  collect  his  tenth  as  the  fruits  are  realized. 

In  order  to  determine  the  value  of  the  tenth,  there  shall  be  taken  into 
consideration  not  only  the  expenses  inverted  in  the  production  of  the 
fruits,  but  all  the  pensions  and  usufructuary  charges  to  which  the^patri- 
mony  may  be  subject. 

614. 

Art.  624.  With  regard  to  the  fruits  hanging  at  the  time  of  the  begin- 
ning or  expiration  of  the  tutorship,  the  tenth  of  the  tutor  or  curator  shall 
be  subject  to  the  same  rules  which  apply  to  a  usufruct. 

715,  717  par.  2,  840. 

Art.  625.  In  general,  there  shall  not  be  reckoned  in  the  fruits  from 
which  the  tenth  is  to  be  deducted,  substances  which,  if  separated,  do  not 
renew  themselves  or  grow  again,  nor  those  the  separation  of  which  deter- 
iorates the  estate  or  reduces  its  value. 

Consequently,  there  shall  not  be  included  in  the  fruits  the  timber  or 
wood  sold,  when  the  cutting  is  not  done  with  the  regularity  necessary  to 
preserve  the  forests  and  trees  as  a  whole. 

The  tenth  shall  extend,  nevertheless,  to  the  output  of  quarries  and 
mines. 

-  843. 

Art.  626.  The  curators  of  the  property  of  absentees,  the  curators  of 
the  eventful  rights  of  a  posthumous  child,  the  curators  of  a  vacant  inheri- 
tance, and  special  curators,  are  not  entitled  to  the  tenth.  They  shall  be 
allowed  by  the  Judge  or  Prefect  an  equitable  remuneration  from  the  fruits 
of  the  property  they  administer,  or  a  determinate  amount,  as  compen- 
sation for  their  services. 


146 


TITLE  XXXV. 

Of  the  Removal  of  Tutors  and  Curators. 

Art.  627.  Tutors  and  curators  shall  be  removed:  1.  For  incapacity; 
2.  For  fraud  or  grave  fault  in  the  exercise  of  their  duties,  and  especially 
for  those  mentioned  in  articles  568  and  523 ;  3.  For  manifest  unsuitabil- 
ity;  4.  For  repeated  acts  of  careless  administration;  5.  For  immoral 
conduct  from  which  injury  may  result  to  the  habits  of  the  ward. 

A  tutor  or  curator  who  is  an  ascendant  or  descendant,  or  spouse  of  the 
ward,  cannot  be  removed  for  the  fourth  excuse*  above  mentioned ;  but 
another  tutor  or  curator  shall  be  associated  to  him  in  the  administration. 

434,  628. 

Art.  628.  Habitual  carelessness  in  the  administration  shall  be  pre- 
sumed by  the  fact  of  the  property  deteriorating  or  the  fruits  diminishing 
to  a  considerable  extent ;  and  a  tutor  or  curator  who  does  not  set  aside 
this  presumption  by  giving  a  satisfactory  explanation  of  this  deteriora- 
tion or  diminution,  shall  be  removed. 

66. 

Art.  629.  He  who  exercises  several  tutorships  or  curatorships  and  is 
removed  from  one  of  them  for  fraud  or  grave  fault,  shall  by  said  act  be 
removed  from  the  others,  on  the  petition  of  the  respective  counsel  or  of 
any  person  of  the  town,  or  at  the  instance  of  the  Court. 

Art.  630.  Proceedings  for  the  removal  may  be  instituted  by  any  of 
the  consanguineous  relatives  of  the  ward,  or  by  his  spouse,  and  even  by 
any  person  of  the  town. 

The  ward  himself  may  institute  them  if  he  has  attained  the  age  of 
puberty,  by  applying  to  the  respective  counsel. 

The  Judge  or  Prefect  may  also  do  so  on  his  own  motion. 

The  relatives  and  the  representatives  of  the  Department  of  Public 
Prosecution  shall  always  be  heard. 

Art.  631.  A  provisional  tutor  or  curator  shall  be  appointed  during 
the  pendency  of  the  proceedings  for  removal.  The  provisional  guardian 
shall  exclude  the  regular  incumbent,  if  he  be  not  an  ascendant,  descen- 
dant or  spouse;  and  if  he  be  such,  he  shall  be  associated  with  him. 

461,  558  pars.  2,  3,  and  4. 

Art.  632.  The  tutor  or  curator  removed  must  fully  indemnify  the  ward. 
He  shall  likewise  be  criminally  prosecuted  for  the  crimes  he  may  have 
committed  in  the  exercise  of  his  duties. 

*The  code  of  Chile  states:  "For  the  fourth  cause  above  mentioned." 


14' 


TITLE  XXXVI. 

Juristic  Persons. 

Art.  633.  A  juristic  person  is  a  fictitious  person,  capable  of  exercis- 
ing rights  and  contracting  civil  obligations,  and  of  being  judicially  and 
extrajudicially  represented. 

Juristic  persons  are  of  two  classes;  corporations  and  foundations  of 
public  beneficence. 

There  are  juristic  persons  which  participate  of  both  characters. 

73,  1504  par.  3,  639.     24,  25  and  26  of  law  57  of  1887.     27,  80 
and  81  of  law  153  of  1887. 

Art.  634.  Foundations  or  corporations  which  have  not  been  estab- 
lished by  virtue  of  a  law  are  not  juristic  persons. 

Art.  635.  Industrial  associations  are  not  included  in  the  provisions 
of  this  Title;  their  rights  and  obligations  are  governed,  according  to 
their  nature,  by  other  Titles  of  this  Code,  and  by  the  Code  of  Commerce. 

Nor  do  the  provisions  of  this  Title  apply  to  corporations  or  founda- 
tions of  a  public  character,  such  as  institutions  which  are  supported  by 
funds  from  the  National  Treasury. 

2079  W  se(l- 

Art.  636.  The  regulations  or  by-laws  of  corporations,  which  they 
themselves  may  have  established,  shall  be  submitted  for  approval  to 
the  Executive  Power  of  the  Union,  which  shall  grant  such  approval  if 
they  should  contain  nothing  against  public  order,  against  the  laws  or 
good  customs. 

All  persons  who  may  be  damaged  by  the  by-laws  of  a  corporation, 
may  appeal  to  the  Executive  Power  aforementioned,  to  have  them 
amended  in  so  far  as  they  prejudice  third  persons,  and  even  after  having 
been  approved  they  shall  have  a  right  of  action  for  every  lesion  or  preju- 
dice which  the  application  of  said  by-laws  may  have  caused  them  or 
might  cause  them. 

Art.  637.  The  property  of  a  corporation  does  not  belong  either  in 
whole  or  in  part  to  any  of  the  members  composing  it;  and,  likewise,  the 
debts  of  a  corporation  do  not  give  any  one  a  right  to  sue  therefor,  either 
in  whole  or  in  part,  any  of  the  members  composing  the  corporation, 
nor  any  right  of  action  against  their  private  property,  but  only  against 
the  property  of  the  corporation. 

Nevertheless,  the  members  may,  stating  it,  specially  bind  themselves, 
at  the  same  time  that  the  corporation  binds  itself  collectively ;  and  the 
liability  of  the  members  shall  then  be  solidary,  if  the  solidarity  be  ex- 
pressly stipulated. 


148 

But  the  liability  does  not  extend  to  the  heirs,  excepting  when  the 
members  of  the  corporation  shall  have  expressly  bound  them. 

1568. 

Art.  638.  The  majority  of  the  members  of  a  corporation  who,  ac- 
cording to  its  by-laws,  have  a  deliberative  vote,  shall  be  considered  a 
quorum  (sala)  or  legal  assembly  of  the  entire  corporation. 

The  will  of  the  majority  of  the  quorum,  is  the  will  of  the  corporation. 

All  of  which  is  understood  without  prejudice  to  the  modifications 
which  the  by-laws  of  the  corporation  may  prescribe  in  this  respect. 

Art.  639.  Corporations  are  represented  by  the  persons  authorized  by 
law  or  the  respective  by-laws,  and  in  the  absence  of  either,  by  a  resolu- 
tion of  the  corporation  conferring  such  representation. 

62,  1505,  1637,  1853,  2104,  2105,  2157. 

Art.  640.  The  acts  of  the  representative  of  the  corporation,  in  so  far 
as  they  do  not  exceed  the  authority  conferred  upon  him,  are  acts  of  the 
corporation;  when  they  exceed  such  authority,  they  bind  the  repre- 
sentative personally  only. 

2104,  2105,  2157. 

Art.  641.  The  by-laws  of  a  corporation  are  binding  upon  it,  and  its 
members  are  obliged  to  obey  them,  under  the  penalties  which  said  by- 
laws may  prescribe. 

Art.  642.  Every  corporation  has  the  right  of  correctional  police  over 
its  members  which  its  by-laws  confer,  and  shall  exercise  this  right  in 
accordance  therewith. 

2107  No.  1.  N 

Art.  643.  Corporations  may  acquire  property  of  all  kinds  under  any 
title,  but  they  cannot  retain  the  possession  of  the  real  property  they 
may  acquire  without  the  special  permission  of  the  Congress  of  the  Union. 

Without  this  special  permission,  they  shall  be  obliged  to  convey  such 
real  property  within  five  years  subsequent  to  the  date  upon  which  they 
acquired  the  possession  thereof ;  and  should  they  not  do  so,  the  property 
shall  be  forfeited. 

This  prohibition  does  not  extend  to  the  rights  of  usufruct  use  or  habita- 
tion or  other  rights  secured  upon  real  property.* 

81  and  84  of  law  153  of  1887. 

*This  article  has  been  repealed  by  art.  45  of  law  57  of  1887  and  substituted  by 
art.  27  of  said  law. 


149 


Art.  644.  Religious  communities,  corporations,  associations  and  en- 
tities are  absolutely  incapable  of  acquiring  real  property,  even  though 
such  communities,  corporations,  associations  or  entities  have  the  char- 
acter of  juristic  persons.* 

Art.  645.  Real  property  possessed  by  corporations,  with  the  permis- 
sion of  Congress,  is  subject  to  the  following  rules : 

1.  It  cannot  be  alienated  nor  encumbered  with  a  mortgage,  usufruct, 
or  servitude,  nor  leased  for  more  than  eight  years,  if  it  should  consist  of 
rural  tenements,  nor  for  more  than  five,  if  urban,  without  a  previous 
decree  from  the  Judge  or  Prefect,  after  an  investigation  into  the  matter, 
and  for  a  reason  of  necessity  or  manifest  utility. 

2.  After  having  been  alienated,  it  may  be  acquired  again  by  the  cor- 
poration, and  held  without  special  permission,  if  the  property  should 
return  to  it  by  the  resolution  of  the  alienation  and  not  under  a  new  title ; 
for  example,  when  he  who  acquired  it  under  certain  obligations,  fails  to 
perform  the  latter,  and  is  obliged  to  make  restitution,  or  when  it  shall 
have  sold  said  property,  reserving  the  right  of  repurchase  within  a  cer- 
tain time,  and  such  right  is  exercised.* 

304,496,  1 8 13. 

Art.  646.  The  creditors  of  corporations  have  a  right  of  action  against 
its  property  as  against  that  of  a  natural  person,  under  tutorship. 

637. 

Art.  647.  Corporations  maybe  dissolved  notwithstanding  the  wishes 
of  the  members  thereof,  if  they  should  threaten  the  safety  or  the  inter- 
ests of  the  Union,  or  do  not  conform  to  the  purpose  of  their  institution.* 

Art.  648.  If  by  death  or  other  accidents  the  members  of  a  corporation 
are  reduced  to  so  small  a  number  that  the  purposes  for  which  it  was  or- 
ganized can  no  longer  be  fulfilled,  or  if  all  of  them  are  lacking  and  the  by- 
laws shall  not  have  provided  for  the  manner  of  renewing  or  making  it  up 
in  such  cases,  the  authority  which  legalized  its  existence  shall  prescribe 
the  manner  in  which  the  renewal  or  completion  is  to  be  executed. 

Art.  649.  A  corporation  having  been  dissolved,  its  property  shall  be 
disposed  of  in  the  manner  prescribed  in  its  by-laws ;  and  if  no  provision 
shall  have  been  made  therein  for  such  case,  said  property  shall  belong  to 
the  Nation,  under  the  obligation  of  applying  the  same  to  purposes  similar 
to  those  of  the  institution.  It  shall  be  the  duty  of  the  Congress  of  the 
Union  to  indicate  them. 

*  Repealed  by  article  45  of  law  57  of  1887. 


i5o 

Art.  650.  Eleemosynary  foundations  which  are  to  he  administered  by 
a  number  of  persons,  shall  be  governed  by  the  by-laws  which  the  founder 
may  have  provided;  and  if  the  founder  should  not  have  expressed  his 
will  in  this  regard,  or  should  have  done  so  in  an  incomplete  manner,  this 
defect  shall  be  supplied  by  the  President  of  the  Union. 

1 1 13  par.  3. 

Art.  651.  The  provisions  of  articles  637  to  649  regarding  corporations 
and  the  persons  composing  them,  shall  apply  to  eleemosynary  founda- 
tions and  to  the  persons  administering  them.* 

Art.  652.  Foundations  expire  by  the  destruction  of  the  property  des- 
tined to  their  maintenance. 

822  No.  3,  866,  2431  par.  1. 

*  Repealed  by  art.  45  of  law  57  of  1887. 


i5i 


BOOK   SECOND. 

OF  PROPERTY  AND  ITS  OWNERSHIP,  POSSESSION, 
USE  AND  ENJOYMENT. 

TITLE!. 

Of  the  Different  Kinds  of  Property. 

Art.  653.  Property  consists  of  corporeal  and  incorporeal  things. 

Corporeal  things  are  those  which  have  a  real  existence  and  can  be  per- 
ceived by  the  senses,  such  as  a  house,  a  book. 

Incorporeal  things  are  those  which  consist  in  mere  rights,  such  as 
credits  and  active  servitudes. 

Chapter  i. 
Of  Corporeal  Things. 

Art.  654.  Corporeal  things  are  divided  into  movables  and  immovables. 

Art.  655.  Movables  are  things  which  can  be  carried  from  one  place  to 
another,  whether  by  their  own  movement,  such  as  animals  (which  are  for 
this  reason  called  self-moving  [semovientes]) ,  or  which  can  be  moved 
only  by  an  exterior  force,  as  inanimate  things. 

Things  which  being  movables  by  nature,  are  reputed  immovables  on 
account  of  their  destination,  according  to  art.  658,  are  excepted. 

Art.  656.  Immovables  or  real  property  are  things  which  cannot  be 
transported  from  one  place  to  another;  such  as  lands  and  mines,  and 
things  which  are  permanently  attached  thereto,  such  as  buildings  and 
trees. 

Houses  and  landed  property  are  called  estates  or  tenements. 

Art.  657.  Plants  are  immovables,  as  long  as  they  are  attached  to  the 
soil  by  their  roots,  unless  they  be  in  pots  or  boxes  which  can  be  carried 
from  one  place  to  another. 

1886. 

Art.  658.  Things  permanently  destined  to  the  use,  cultivation  and  im- 
provement of  an  immovable,  even  though  they  can  be  separated  without 
injury,  are  considered  immovables,  although  by  their  nature  they  are  not 
so.     Such  are: 

The  flags  of  a  pavement. 

Piping. 


152 

Agricultural  or  mining  implements,  and  animals  actually  employed  in 
the  cultivation  or  improvement  of  an  estate,  provided  they  have  been 
placed  thereon  by  the  owner  of  the  estate. 

The  fertilizer  thereon  employed  by  the  owner  of  the  estate  for  its  im- 
provement. 

The  presses,  boilers,  casks,  stills,  hogsheads  and  machinery,  which 
form  part  of  an  industrial  institution  adhering  to  the  soil  and  belonging 
to  the  owner  of  the  latter. 

Animals  kept  in  warrens,  aviaries,  ponds,  hives,  and  any  other  viva- 
ries,  provided  the  latter  are  attached  to  the  soil,  or  are  a  part  of  the  soil 
itself  or  of  a  building. 

660,  661,  67.2,  1886,  2445,  1 163. 

Art.  659.  The  products  of  immovables,  and  the  things  accessory 
thereto,  such  as  the  grass  in  fields,  the  wood  and  fruit  of  trees,  the  ani- 
mals in  a  vivary,  are  considered  movables,  even  before  their  separation, 
for  the  purpose  of  constituting  a  right  in  said  products  or  things  in  favor 
of  a  person  other  than  the  owner. 

The  same  applies  to  the  earth  or  sand  of  a  soil,  to  the  ores  of  a  mine, 
and  to  the  stone  of  a  quarry. 

1857,  par.  3,  715,  2445. 

Art.  660.  Articles  of  comfort  or  adornment  nailed  or  affixed  to  the 
walls  of  houses,  which  can  be  easily  removed  without  injury  to  the  said 
walls,  such  as  stoves,  mirrors,  pictures,  tapestries,  shall  be  considered 
movables.  If  the  pictures  or  mirrors  are  laid  into  the  walls  so  that  they 
form  one  piece  with  them,  they  shall  be  considered  a  part  thereof  even 
though  they  can  be  removed  without  injury. 

658. 

Art.  661.  Things  which  are  considered  immovables,  by  reason  of 
being  accessory  to  real  property,  do  not  cease  being  so  by  their  momen- 
tary separation ;  for  example,  bulbs  and  bulbous  roots  which  are  taken 
up  with  the  intention  of  replanting  them,  and  paving  stones  or  stones 
which  are  removed  from  their  places  for  the  purposes  of  building  or  re- 
pair, and  with  the  intention  of  returning  them  thereto.  But  when  they 
are  removed  for  the  purpose  of  employing  them  otherwise,  they  cease 
being  immovables. 

1886,  2445. 

Art.  662.  When  the  law  or  a  man  employs  the  expression  movable 
property  (bienes  muebles)  without  any  other  qualification,  it  shall  com- 
prise all  that  is  understood  by  movable  things  according  to  article  655. 


153 

In  the  furniture  of  a  house  (muebles  de  una  casa)  shall  not  be  included 
money,  documents  and  papers,  scientific  or  artistic  collections,  books 
or  their  shelves,  medals,  arms,  implements  of  arts  and  trades,  jewelry, 
wearing  apparel  and  bed  clothing,  carriages  or  horses  with  their  harness, 
grains,  liquids  (caldos),  merchandise,  nor  generally  other  things  which 
do  not  form  the  furnishings  of  a  house. 

1 1 79. 

Art.  663.  Movable  things  are  divided  into  fungible  and  not  fungible. 
To  the  former  belong  those  which  cannot  be  used  in  a  manner  appro- 
priate to  their  nature  without  being  consumed. 

Specie  or  money  in  so  far  as  it  is  consumed  by  the  person  using  it  as 
such,  is  a  fungible  thing. 

Chapter  2. 
Of  Incorporeal  Things. 

Art.  664.  Incorporeal  things  are  real  or  personal  rights. 

Art.  665.  A  real  right  (jus  in  re. — Tr.)  is  that  which  we  have  in  a 
thing  without  respect  to  a  specific  person.* 

Real  rights  are  that  of  ownership,  that  of  inheritance,  those  of  usu- 
fruct, use  or  habitation,  those  of  active  servitudes,  that  of  pledge  and 
that  of  mortgage.     Real  actions  result  from  these  rights. 

948,  950. 

Art.  666.  Personal  rights  or  credits  are  those  which  can  be  demanded 
only  of  certain  persons  who,  by  their  act  or  by  a  mere  provision  of  law, 
have  contracted  the  correlative  obligations;  such  as  that  which  the 
lender  has  against  the  debtor  for  the  money  loaned,  or  the  son  against 
the  father  for  support.     From  these  rights  personal  actions  result. 

Art.  667.  Rights  and  actions  are  considered  movables  or  immovables, 
according  to  the  nature  of  the  thing  against  which  they  are  to  be  ex- 
ercised or  which  is  owed.  Thus,  the  right  of  usufruct  in  an  immovable, 
is  an  immovable.  Thus,  the  action  of  the  purchaser  to  secure  the 
delivery  of  an  estate  purchased,  is  an  immovable ;  and  the  action  of 
one  who  has  loaned  money  to  recover  it,  is  a  movable. 

Art.  668.  Acts  which  are  due  are  considered  movables.  An  action 
to  force  an  artificer  to  perform  the  work  agreed  upon,  or  to  recover  dam- 
ages for  breach  of  contract,  is  comprised,  consequently,  in  the  class  of 
movable  property. 

*  See  Cevres  de  Pothier  (1781),  vol.  4,  p.  343;  referred  to  in  "Studies  in  the  Civil 
Law  and  its  relations  to  the  law  of  England  and  America,"  by  William  Wirt  Howe, 
Boston,  1896  (pp.  79-80). 


154 

TITLE   II. 

Of  Ownership. 

Art.  669.  Ownership  (which  is  also  called  property)  is  the  real  right  in 
a  corporeal  thing,  to  enjoy  and  dispose  thereof  arbitrarily,  if  not  against 
the  law  or  the  right  of  another. 

Ownership  separated  from  the  enjoyment  of  the  thing,  is  called  mere 
or  naked  ownership. 

824. 

Art.  670.  There  is  also  a  kind  of  ownership  in  incorporeal  things. 
Thus,  the  usufructuary  has  the  ownership  of  his  right  of  usufruct. 

824,  775,  95o,  978. 

Art.  671.  The  products  of  talent  or  genius,  are  the  property  of  their 
authors. 

Property  of  this  character  shall  be  governed  by  special  laws. 

83  and  326  of  law  153  of  1887. 

Art.  672.  The  use  and  enjoyment  of  chapels  and  cemeteries,  situated 
on  possessions  of  private  individuals  and  their  appurtenances,  shall  pass 
together  with  them  and  with  the  ornaments,  vases,  and  other  objects 
belonging  to  such  chapels  or  cemeteries,  to  the  persons  who  successively 
acquire  the  possessions  upon  which  they  are  situated,  unless  it  be  other- 
wise provided  by  testament  or  by  an  act  inter  -vivos. 

Art.  673.  Methods  of  acquiring  ownership  are  occupation,  accession, 
tradition,  succession  mortis  causa,  and  prescription. 

The  acquisition  of  ownership  by  the  last  two  methods,  will  be  treated 
of  in  the  Book  entitled  Of  succession  mortis  causa,  and  at  the  end  of 
this  Code. 

765,  685,  713,  740,  754,  756. 


155 

TITLE  III. 

Of  Property  of  the  Union. 

Art.  674.  Property  of  the  Union  is  that  whose  ownership  is  vested  in 
the  Republic. 

If  in  addition  the  use  thereof  belongs  to  all  the  inhabitants  of  a  Terri- 
tory, such  as  that  of  streets,  squares,  bridges  and  roads,  it  is  called 
property  of  the  Union  for  public  use  or  public  property  of  the  Territory. 

The  property  of  the  Union  whose  use  does  not  belong  generally  to  the 
inhabitants,  is  called  property  of  the  Union,  or  fiscal  property. 

Art.  675.  All  lands  situated  within  the  territorial  limits  which  have 
no  other  owner,  are  the  property  of  the  Union. 

Art.  676.  Bridges  and  roads  constructed  at  the  expense  of  private 
persons,  upon  lands  belonging  to  them,  are  not  property  of  the  Union, 
even  though  the  owners  permit  their  use  and  enjoyment  to  all  the  inhabi- 
tants of  a  Territory. 

The  same  applies  to  any  other  constructions  made  at  the  expense  of 
private  inidividuals  upon  their  own  lands,  even  though  their  use  be 
public,  by  permission  of  the  owner. 

2520. 

Art.  677.  Rivers  and  all  waters  running  along  natural  channels  are 
the  property  of  the  Union,  of  public  use  in  the  respective  Territories. 

Running  waters  rising  and  dying  upon  the  same  tenement  are  ex- 
cepted; their  ownership,  use  and  enjoyment  belong  to  the  riparian 
owners,  and  pass  together  with  the  banks  to  the  heirs  and  other  succes- 
>rs  of  the  owners. 

Art.  678.  The  use  and  enjoyment  which  for  transit,  irrigation,  navi- 
gation and  any  other  licit  purposes,  private  individuals  have  in  the 
streets,  squares,  bridges  and  public  roads,  in  rivers  and  lakes,  and 
generally  in  all  the  property  of  the  Union  of  public  use,  shall  be  subject 
to  the  provisions  of  this  Code  and  such  others  on  the  subject  as  may  be 
contained  in  the  laws. 

Art.  679.  No  one  can  build,  without  special  permission  from  a 
competent  authority,  any  work  upon  the  streets,  squares,  bridges, 
shores,  fiscal  lands  and  other  places  which  are  the  property  of  the  Union. 

Art.  680.  The  columns,  pillars,  approaches,  porches,  and  any  other 
constructions,  which  serve  for  the  comfort  or  ornamentation  of  build- 
ings, or  form  a  part  thereof,  cannot  occupy  any  space,  no  matter  how 
small  it  be,  of  the  surface  of  streets,  squares,  bridges,  roads  and  other 
places  which  are  the  property  of  the  Union. 


156 

Buildings  with  regard  to  which  a  contrary  practice  has  been  tolerated, 
shall  be  subject  to  the  provisions  of  this  article,  if  rebuilt. 

Art.  68  i.  In  buildings  constructed  upon  a  line  with  the  streets 
or  squares,  there  cannot  be,  below  the  height  of  three  meters,  any  win- 
dows, balconies,  outlooks  or  other  works  which  project  more  than  one- 
half  a  decimeter  beyond  the  vertical  plane  of  the  building  line;  nor  can 
there  be  any  above  said  distance  which  project  beyond  said  vertical 
plane  horizontally  more  than  three  decimeters. 

The  provisions  of  this  article  shall  apply  to  the  reconstruction  of 
said  buildings. 

Art.  682.  Private  individuals  who  have  obtained  permission  from 
the  proper  authority  to  construct  works  upon  the  property  of  the 
Union,  have  only  the  use  and  enjoyment  thereof,  and  not  the  ownership 
of  the  soil. 

Upon  the  works  being  abandoned  or  the  time  for  which  the  permis- 
sion was  granted  having  expired,  such  works  and  the  soil,  by  operation 
of  law,  return  to  the  use  and  exclusive  enjoyment  of  the  Union,  or  to  the 
use  and  general  enjoyment  of  the  inhabitants,  as  the  sovereign  authority 
may  prescribe.  But  this  does  not  apply  if  the  ownership  of  the  soil 
has  been  expressly  granted  by  the  Union. 

Art.  683.  No  ditches  can  be  dug  diverting  the  water  of  rivers  for  any 
industrial  or  domestic  purpose,  except  in  accordance  with  the  respective 
laws. 

918. 

Art.  684.  Notwithstanding  the  provisions  of  this  Chapter,  and  those 
contained  in  that  on  Accession,  regarding  the  ownership  of  the  Union 
over  rivers,  lakes,  and  islands,  the  rights  acquired  by  private  individuals 
therein  in  accordance  with  legislation  prior  to  this  code  shall  subsist. 


157 

TITLE  IV. 

Of  Occupancy. 

Art.  685.  By  occupancy  the  ownership  is  acquired  of  things  which 
belong  to  nobody,  and  the  acquisition  of  which  is  not  prohibited  by 
the  laws  or  by  International  law. 

673- 

Art.  686.  Hunting  and  fishing  are  kinds  of  occupancy,  by  which 
the  ownership  of  wild  animals  is  acquired. 

Art.  687.  Wild  or  savage  animals  are  those  which  live  naturally  free 
and  independent  of  man,  such  as  wild  beasts  and  fish;  domestic,  those 
which  belong  to  species  which  live  ordinarily  under  the  dependency  of 
man,  such  as  hens  and  pigeons;  and  domesticated,  those  which,  notwith- 
standing that  they  are  wild  by  nature,  have  become  accustomed  to 
domesticity,  and  recognize  in  a  certain  manner  the  ascendency  of  man. 

The  last  named,  as  long  as  they  retain  the  habit  of  returning  to  the 
protection  or  dependency  of  man,  follow  the  rule  of  domestic  animals, 
and  when  they  lose  this  habit,  they  again  return  to  the  class  of  wild 
animals. 

Art.  688.  Hunting  can  be  done  only  on  one's  own  lands,  or  on  the 
lands  of  another,  with  the  permission  of  the  owner. 

But  such  permission  shall  not  be  necessary,  if  the  lands  should  not  be 
enclosed,  nor  planted  or  cultivated,  unless  the  owner  shall  have  forbid- 
den hunting  thereon  expressly,  and  given  notice  of  the  prohibition. 

Art.  689.  If  anyone  should  hunt  upon  the  property  of  another  with- 
out the  permission  of  the  owner,  when,  under  the  law,  he  is  obliged  to 
obtain  it,  what  he  has  killed  shall  belong  to  the  owner,  whom  he  shall  in 
addition  compensate  for  all  damages. 

Art.  690.  Fishing  may  be  done  freely  in  the  rivers  and  lakes  of  public 
use. 

Art.  691.  It  shall  not  be  lawful  for  those  fishing  in  the  rivers  or  lakes 
to  make  any  use  of  the  buildings  and  cultivated  lands  on  the  banks,  nor 
to  pass  through  fences. 

898. 

Art.  692.  The  provisions  of  article  689  apply  to  fishing  in  the  waters 
:>f  another. 

Art.  693.  It  shall  be  understood  that  the  hunter  or  fisher  takes  pos- 
session of  the  wild  animal  and  makes  it  his  own  from  the  instant  he  has 
seriously  wounded  it,  so  that  it  can  no  longer  escape  easily,  and  as  long 


158 

as  he  continues  to  pursue  it;  or  from  the  instant  the  animal  has  fallen 
into  his  traps  or  nets,  provided  that  he  has  set  them  up  or  located  them 
in  a  place  where  it  is  lawful  for  him  to  hunt  or  fish. 

If  the  wounded  animal  enter  upon  the  lands  of  another  where  it  is  not 
lawful  to  hunt  without  the  permission  of  the  owner,  the  latter  may  ap- 
propriate it. 

Art.  694.  It  is  not  lawful  for  a  hunter  or  fisherman  to  pursue  a  wild 
animal,  which  is  already  being  pursued  by  another  hunter  or  fisherman ; 
should  he  do  so  without  his  consent,  and  take  possession  of  the  animal, 
the  other  may  claim  it  as  his  own. 

Art.  695.  Wild  animals  belong  to  the  owner  of  the  cages,  aviaries, 
warrens,  hives,  ponds  or  corrals  in  which  they  may  be  confined ;  but  as 
soon  as  they  recover  their  natural  liberty,  any  person  may  take  posses- 
sion of  them  and  make  them  his  own,  provided  that  the  owner  is  not 
actually  pursuing  them,  holding  them  in  sight,  and  the  provisions  of 
article  688  are  not  otherwise  violated. 

Art.  696.  Bees  abandoning  the  hive  and  lighting  upon  a  tree  which  is 
not  the  property  of  the  owner  of  the  latter,  return  to  their  natural  lib- 
ersy,  and  anyone  may  take  possession  of  them  and  of  the  combs  made  by 
them,  provided  that  it  be  not  done  without  the  permission  of  the  owner 
on  another's  or  enclosed  or  cultivated  lands,  or  against  his  prohibition  on 
other  lands ;  but  the  owner  of  the  hive  cannot  be  forbidden  from  pursuing 
the  fugitive  bees  on  lands  which  are  neither  enclosed  nor  under  cultiva- 
tion. 

Art.  697.  Pigeons  leaving  a  dovecote  and  seeking  another,  shall  be 
understood  to  be  lawfully  occupied  by  the  owner  of  the  latter,  provided 
that  he  has  not  availed  himself  of  any  artifice  to  attract  and  accustom 
them  to  remain. 

In  such  case  he  shall  be  obliged  to  compensate  all  damages,  including 
the  restitution  of  the  animals,  if  the  owner  should  require  it,  and,  other- 
wise, to  pay  their  price. 

Art.  698.  Domestic  animals  are  subject  to  ownership. 

The  owner  retains  this  ownership  in  fugitive  domestic  animals,  even 
though  they  may  have  entered  upon  the  property  of  another ;  except  in 
so  far  as  the  laws  and  regulations  of  rural  or  urban  police  should  provide 
otherwise. 

Art.  699.  The  finding  or  recovery  of  a  thing  is  a  species  of  occupation 
by  which  he  who  finds  an  inanimate  thing,  belonging  to  nobody,  acquires 
its  ownership,  by  taking  possession  of  it. 

In  this  manner  is  acquired  the  ownership  of  stones,  shells,  and  other 
substances  cast  up  by  the  sea,  and  which  show  no  indications  of  a  prior 
ownership.  In  the  same  manner  are  acquired  things  whose  ownership 
is  abandoned  by  their  owner,  such  as  coins  thrown  away  to  be  kept  'by 
the  first  occupier. 


159 

Things  thrown  into  the  sea  by  navigators  for  the  purpose  of  lighten- 
ing a  vessel,  are  not  considered  as  abandoned  by  their  owners. 

Art.  700.  The  discovery  of  a  treasure  is  a  species  of  discovery  or  find. 

Treasure  is  called  the  money  or  jewels  or  other  precious  effects  which, 
having  been  manufactured  by  man,  have  been  buried  or  hidden  for  a 
long  time,  without  there  being  any  remembrance  or  indication  of  their 
owner. 

Art.  701.  Treasure  found  upon  the  property  of  another  shall  be  di- 
vided into  equal  parts  between  the  owner  of  the  land  and  the  person  who 
may  have  made  the  discovery. 

But  the  latter  shall  not  be  entitled  to  his  share,  unless  the  discovery 
be  a  chance  one,  or  when  the  treasure  has  been  sought  with  the  permis- 
sion of  the  owner. 

In  other  cases  or  when  the  owner  of  the  land  and  the  discoverer  are 
one  and  the  same  person,  all  the  treasure  shall  belong  to  the  owner  of  the 
land. 

845,1787. 

Art.  702.  Any  person  may  request  the  owner  of  an  estate  or  of  a  build- 
ing for  permission  to  dig  in  the  soil  to  remove  money  or  jewels  which  he 
assures  belong  to  him  or  to  be  hidden  there ;  and  if  he  should  indicate 
the  spot  where  they  are  hidden  and  give  proper  security  that  he  will 
establish  his  right  thereto,  and  that  he  will  make  good  to  the  owner  any 
damage  to  the  estate  or  building,  the  latter  cannot  refuse  permission, 
nor  object  to  the  removal  of  said  money  or  jewelry. 

Art.  .703.  Should  the  right  to  said  money  or  jewelry  not  be  established, 
it  shall  be  considered  either  as  lost  property,  or  as  treasure  found  upon  the 
property  of  another,  according  to  the  antecedents  and  indications. 

In  the  latter  case,  after  having  deducted  the  cost  or  expenses,  the 
treasure  shall  be  divided  equally  between  the  discoverer  and  the  owner 
of  the  soil;  but  the  latter  cannot  demand  compensation  of  damages, 
unless  he  renounce  his  share. 

Art.  704.  He  who  shall  find  or  discover  a  thing  which  by  its  nature 
shows  that  it  had  previously  belonged  to  some  one,  or  that  by  its  marks 
or  vestiges  indicates  that  it  has  been  in  such  former  ownership,  he  must 
place  it  at  the  disposal  of  such  owner,  if  he  be  known. 

If  the  owner  of  the  thing  found  or  discovered  should  not  be  known  or 
should  not  appear,  the  thing  shall  provisionally  be  considered  vacant  or 
unclaimed. 

Art.  705.  The  person  who,  in  the  case  of  the  preceding  article  should 
omit  to  deliver  to  the  owner,  if  known,  or,  if  not  known,  to  the 
proper  authority,  the  movable  thing  found,  within  thirty  days. following 
the  finding  thereof,  shall  be  criminally  prosecuted,  apart  from  the 
liability  which  may  lie  by  reason  of  the  prejudice  which  his  omission 
may  cause. 


i6o 

Art.  706.  Vacant  property  is  immovable  property  situated  within  the 
respective  Territory,  for  the  account  of  the  Nation,  without  an  apparent 
or  known  owner;  and  unclaimed  (mostrencos),  movable  property  in  the 
same  condition. 

Art.  707.  Vacant  property  and  the  unclaimed  property  of  the  Terri- 
tories belong  to  the  Union. 

The  alienation  and  application  of  such  property  shall  be  governed  by 
the  provisions  of  the  Fiscal  Code. 

Art.  708.  If  the  owner  of  a  thing  which  has  been  considered  vacant  or 
unclaimed,  should  appear,  before  the  Union  shall  have  alienated  it,  it 
shall  be  restored  to  him,  upon  the  payment  of  the  expense  of  securing 
it,  of  its  preservation  and  other  incidental  expenses  and  the  sum  which, 
under  the  law,  may  be  due  the  person  who  found  or  gave  notice  of  the 
vacant  thing. 

If  the  owner  should  have  offered  a  reward  for  the  discovery,  the  per- 
son having  given  notice  shall  choose  between  the  amount  fixed  by  law 
and  the  reward  offered. 

Art.  709.  After  the  thing  shall  have  been  alienated,  it  shall  be  con- 
sidered as  irrevocably  lost  to  the  owner. 

Art.  710.  Flotsam  and  jetsam  saved,  shall  be  restored  by  the  author- 
ities to  the  persons  interested,  upon  the  payment  of  the  expenses  and  the 
salvage  fees. 

If  no  interested  persons  should  appear  within  thirty  days  after  the 
shipwreck,  the  property  salvaged  shall  be  declared  unclaimed,  after  the 
proper  proceedings. 

Art.  711.  The  proper  authority  shall  fix,  according  to  the  circum- 
stances, the  salvage  fees,  which  shall  never  exceed  one  half  the  value  of 
the  property. 

But  if  the  salvage  of  the  flotsam  and  jetsam  should  be  conducted  under 
the  orders  and  direction  of  the  public  authorities,  they  shall  be  returned 
to  the  owners,  upon  the  payment  of  the  expenses  incurred,  without  any 
salvage  fees. 

Art.  712.  The  proceedings  for  the  declaration  of  property  being 
vacant  or  unclaimed,  are  the  subject  of  the  Judicial  Code  of  the  Union. 


i6i 

TITJL.E  V. 

Of  Accession. 

Art.  713.  Accession  is  a  mode  of  acquiring  by  which  the  owner  of  a 
thing  becomes  that  of  what  it  produces,  or  of  that  which  becomes  united 
to  it.     The  products  of  things  are  natural  or  civil  fruits. 

673. 

Chapter  i. 

Of  the  Accessions  of  Fruits. 

Art.  714.  Natural  fruits  are  those  which  nature  produces,  assisted  or 
not  by  human  industry. 

Art.  715.  Natural  fruits  are  called  hanging,  as  long  as  they  adhere  to 
the  thing  which  produces  them,  such  as  plants  which  are  rooted  in  the 
soil,  or  the  products  of  plants  as  long  as  they  have  not  been  separated 
therefrom. 

Gathered  natural  fruits  are  those  which  have  been  separated  from  the 
thing  that  produced  them,  such  as  cut  timber,  harvested  fruits  and  grains, 
etc.,  and  are  said  to  be  consumed  when  they  have  been  really  consumed, 
or  alienated. 

624,  840. 

Art.  716.  The  natural  fruits  of  a  thing  belong  to  the  owner  thereof; 
without  prejudice  to  the  rights  established  by  the  laws,  or  by  an  act  of 
man,  in  a  bona  fide  possessor,  a  usufructuary,  a  lessee. 

Hence,  the  vegetables  which  the  earth  produces  spontaneously  or  by 
cultivation,  and  the  fruits,  seeds  and  other  products  of  vegetables,  belong 
to  the  owner  of  the  land. 

Thus  also,  the  hides,  wool,  horns,  milk,  brood  and  other  products  of 
animals,  belong  to  the  owner  of  the  latter. 

1000. 

r 

Art.  717.  Civil  fruits  are  rents,  leases,  rent  charges  (censos),  the  inter- 
est on  demandable  capitals  or  of  life  annuities. 

Civil  fruits  are  called  hanging  or  pending  while  they  are  due;  and 
acquired,  after  they  have  been  collected. 

624,  840. 


,  l62 

Art.  718.  Civil  fruits  belong  also  to  the  owner  of  the  thing  producing 
them,  in  the  same  manner  and  with  the  same  limitations  as  natural 
fruits. 

Chapter  2. 

Of  Accessions  of  the  Soil. 

Art.  719.  Alluvion  is  the  increase  which  the  bank  of  a  river  or  lake 
receives  by  the  slow  and  imperceptible  withdrawal  of  the  waters. 

Art.  720.  The  alluvion  belongs  to  the  riparian  estates  within  their 
respective  lines  of  demarcation,  extended  directly  to  the  water;  but  in 
open  ports  it  shall  belong  to  the  Union. 

The  soil  which  the  water  alternately  covers  and  uncovers,  in  its  peri- 
odical rises  and  falls,  forms  part  of  the  bed  or  channel,  and  does  not 
therefore  accrue  to  the  contiguous  estates. 

Art.  721.  If  a  prolongation  of  the  aforementioned  lines  of  demarca- 
tion should  result  in  their  crossing  each  other  before  reaching  the  water, 
the  triangle  formed  by  them  and  the  water's  edge,  shall  accrue  to  the 
two  lateral  estates ;  a  straight  line  dividing  it  into  two  equal  parts  drawn 
from  the  point  of  intersection  to  the  water,  shall  be  the  dividing  line  be- 
tween the  two  estates. 

Art.  722.  The  ownership  in  land  which  by  a  flood  or  other  natural 
violent  force,  is  taken  from  one  place  to  another,  is  retained  by  the 
owner  thereof,  for  the  sole  purpose  of  taking  it ;  but  if  he  does  not  claim  it 
within  the  next  year,  it  shall  become  the  property  of  the  owner  of  the 
place  to  which  it  was  carried. 

Art.  723.  If  a  tenement  shall  have  been  inundated,  the  land  which  is 
restored  by  the  waters  within  the  next  ten  years  shall  return  to  its  for- 
mer owners. 

867. 

Art.  724.  If  a  river  changes  its  course,  the  riparian  owners  may,  with 
the  permission  of  the  proper  authorities,  construct  the  works  necessary 
to  return  the  waters  to  their  original  channel,  and  that  part  of  the  latter 
which  remains  permanently  dry,  shall  accrue  to  the  contiguous  tene- 
ments, as  the  alluvion  does  in  the  case  of  article  720. 

If  the  riparian  owners  of  one  side  agree  with  those  of  the  other,  a 
longitudinal  line  shall  divide  the  new  territory  into  two  equal  parts,  and 
each  of  the  latter  shall  accrue  to  the  contiguous  tenements,  as  in  the  case 
of  the  said  article. 

Art.  725.  If  a  river  divides  itself  into  two  branches,  which  do  not  later 
unite,  the  parts  of  the  channel  which  the  water  may  leave  uncovered, 
shall  accrue  to  the  contiguous  tenements,  as  in  the  case  of  the  preced- 
ing article. 


i63 

Art.  726.  With  regard  to  the  new  islands  which  are  not  to  belong  to 
the  Union,  the  following  rules  shall  be  observed : 

1 .  The  new  island  shall  be  considered  as  a  part  of  the  channel  or  bed 
as  long  as  it  is  alternately  covered  and  uncovered  by  the  water  in  its  peri- 
odical rises  and  falls,  and  shall  not  accrue  to  the  riparian  estates  in  the 
meantime. 

2.  The  new  island  formed  by  a  river  which  divides  into  two  branches 
which  later  join  again,  does  not  change  the  former  ownership  of  the  lands 
comprised  therein ;  but  the  new  land  left  uncovered  by  the  river,  shall 
belong  to  the  contiguous  tenements  as  in  the  case  of  article  724. 

3.  The  new  island  formed  in  the  channel  of  a  river,  shall  accrue  to  the 
tenements  on  that  of  the  two  banks  nearest  the  entire  island ;  each  tene- 
ment taking  the  part  comprised  between  its  respective  lines  of  demarca- 
tion extended  directly  to  the  island  and  over  its  surface. 

If  the  entire  island  should  not  be  nearer  one  bank  than  the  other,  it 
shall  accrue  to  the  tenements  on  both  banks ;  each  tenement  receiving 
the  part  comprised  between  its  respective  lines  of  demarcation  extended 
directly  to  the  island  and  over  its  surface. 

The  parts  of  the  island  which  by  virtue  of  these  provisions  should  be- 
long to  two  or  more  tenements,  shall  be  divided  into  equal  parts  between 
the  said  tenements. 

4.  In  the  distribution  of  a  new  island,  any  island  or  islands  which  may 
have  existed  there  formerly,  shall  be  ignored ;  and  the  new  island  shall 
accrue  to  the  riparian  estates,  as  if  it  alone  existed. 

5.  The  owners  of  an  island  formed  by  the  river,  acquire  the  ownership 
of  all  that  accrues  thereto  by  alluvion,  no  matter  what  distance  it  may 
be  from  the  bank,  excepting  new  land  uncovered  by  the  waters. 

6.  The  second  paragraph  of  the  third  rule  above,  shall  apply  to  a  new 
island  formed  in  a  lake;  but  estates  whose  shortest  distance  from  the 
island  exceeds  one-half  the  diameter  of  the  latter,  measured  in  the  direc- 
tion of  said  distance,  shall  not  participate  in  the  division  of  the  land 

formed  by  the  waters.* 

i , 

*  The  first  paragraph  of  this  article  is  drafted  in  the  Chilean  Code  as  follows:  "As 
to  the  new  islands  which  are  not  to  belong  to  the  State  according  to  art.  597,  the  fol- 
lowing rules  shall  be  observed.     .     .     ." 

Art.  597  of  said  Code  is  as  follows: 

"The  new  islands  formed  in  the  territorial  waters  (mar  territorial),  or  in  rivers  and 
lakes  which  can  be  navigated  by  vessels  of  more  than  one  hundred  tons,  shall  belong 
to  the  State." 

As  the  Colombian  legislator  suppressed  this  article  (597)  it  appears  that  under  the 
Civil  Code  it  cannot  be  ascertained  what  are  the  new  islands  "which  are  not  to  belong 
to  the  Union."  (Angarita.) 


1 64 

Chapter  3. 
0}  the  Accession  of  One  Movable  to  Another. 

Art.  727.  Adjunction  is  a  kind  of  accession,  and  takes  place  when  two 
movables  belonging  to  different  owners,  are  united  to  each  other,  but  in 
such  manner  that  they  can  be  separated  and  each  of  them  subsist  after 
separation;  as  when  the  diamond  of  one  person  is  set  in  the  gold  of 
another,  or  a  mirror  is  placed  in  another's  frame. 

Art.  728.  In  cases  of  adjunction,  without  the  knowledge  of  one  party 
nor  bad  faith  on  the  part  of  the  other,  the  ownership  of  the  accessory 
thing  shall  accede  to  the  ownership  of  the  principal  one,  with  the  charge 
of  paying  its  value  to  the  owner  of  the  accessory  part. 

Art.  729.  If  of  two  united  things,  one  is  of  much  greater  estimation 
than  the  other,  the  first  shall  be  considered  as  the  principal  one,  and  the 
latter  as  the  accessory  one. 

A  thing  which  has  for  the  owner  a  special  or  sentimental  value  {valor 
de  ajeccion)  shall  be  considered  as  the  more  valuable. 

Art.  730.  If  there  be  not  so  much  difference  in  the  estimation,  that  of 
the  two  things  which  serves  for  the  use,  ornament  or  supplement  of  the 
other,  shall  be  considered  as  accessory. 

Art.  731.  In  cases  in  which  none  of  the  preceding  rules  can  be  applied, 
that  of  the  greatest  volume  shall  be  considered  as  the  principal  one. 

Art.  732.  Another  kind  of  accession  is  that  in  specification*  which 
takes  place  when  of  a  substance  belonging  to  one  person,  another  person 
makes  any  work  or  article  whatever,  as  if  of  another's  grapes  wine  is 
made,  or  a  cup  out  of  another's  silver,  or  a  boat  out  of  another's  wood. 

If  the  act  be  not  done  knowingly  by  the  one  party,  and  there  be  not 
bad  faith  in  the  other,  the  owner  of  the  substance  shall  have  a  right  to 
demand  the  new  species  upon  paying  for  the  making  thereof. 

Provided  that  unless  in  the  work  or  article,  the  price  of  the  new  spe- 
cies is  much  more  valuable  than  that  of  the  material,  as  when  a  painting 
is  made  on  another's  canvas,  or  a  statue  from  another's  marble;  as  in 
such  case  the  new  species  shall  belong  to  its  maker  (es pecificante) ,  and 
the  owner  of  the  material  shall  be  entitled  only  to  compensation  for 
damages. 

If  the  material  of  which  the  article  is  made,  belongs  in  part  to  another 
and  in  part  to  the  person  who  made  it  or  had  it  made,  and  the  two  parts 
cannot  be  separated  conveniently,  the  species  shall  belong  in  common 
to  the  two  owners ;  to  one  in  proportion  to  the  value  of  his  material,  and 
to  the  other  in  proportion  to  the  value  of  his  material  and  workmanship. 

1613. 
*  See  La.  Civil  Code,  525  [517],  et  seq.     Also  Mackeld.  Rom.  Law,  J271. 


i65 

Art.  733.  If  a  thing  be  formed  by  the  admixture  of  dry  or  liquid 
substances,  belonging  to  different  owners,  without  the  knowledge  of  one 
party  and  without  bad  faith  on  the  part  of  the  other,  the  ownership  of 
the  thing  shall  belong  to  said  individuals  pro  indiviso,  in  proportion  to 
the  value  of  the  material  belonging  to  each. 

Provided  that  unless  the  value  of  the  material  belonging  to  one  of 
them  should  be  considerably  higher,  as  in  such  case  the  owner  thereof 
shall  have  a  right  to  demand  the  thing  produced  by  the  admixture  and 
pay  the  value  of  the  remaining  material. 

Art.  734.  In  all  cases  in  which  the  owner  of  one  of  the  two  substances 
united  cannot  easily  replace  it  by  another  of  the  same  quality,  value 
and  suitability,  and  the  former  can  be  separated  without  injury  to  the 
rest,  the  owner  thereof,  without  whose  knowledge  the  union  shall  have 
been  made,  may  request  its  separation  and  delivery,  at  the  cost  of  the 
person  who  made  use  thereof. 

Art.  735.  In  all  cases  in  which  the  owner  of  a  substance  of  which  use 
has  been  made  without  his  knowledge,  has  a  right  to  the  ownership  of 
the  thing  in  which  it  has  been  employed,  he  shall  have  a  similar  right  to 
demand  that  in  place  of  said  substance  a  similar  amount  of  the  same 
nature,  quality  and  suitability,  or  its  value  in  money,  be  given  him. 

Art.  736.  He  who  may  have  had  knowledge  of  the  use  which  another 
person  was  making  of  his  material,  shall  be  presumed  to  have  consented 
thereto  and  shall  only  be  entitled  to  the  value  thereof. 

66. 

Art.  737.  He  who  shall  have  made  use  of  material  without  the  know- 
ledge of  the  owner,  and  without  just  cause  of  error,  shall  be  subject  in  all 
cases  to  the  loss  of  his  work  and  material,  and  be  obliged  to  pay  the 
excess  value  of  the  damages  incurred  by  the  owner;  aside  from  the 
criminal  action  which  may  lie,  when  he  shall  have  acted  knowingly 

If  the  value  of  the  work  should  notably  exceed  that  of  the  material, 
the  provisions  of  this  article  shall  not  apply;  unless  the  act  was  per- 
formed knowingly. 


Chapter  4. 

Of  the  Accession  of  Movables  to  Immovables. 

Art.  738.  If  building  is  done  with  materials  belonging  to  another 
upon  one's  own  ground,  the  owner  of  the  ground  shall  become  the  owner 
of  the  materials  by  the  act  of  their  incorporation  in  the  construction ; 
but  he  shall  be  obliged  to  pay  the  owner  of  the  materials  their  just  price 
or  return  to  him  an  equal  amount  of  the  same  nature,  quality  and  suita- 
bility. 


i66 

If  on  his  part  there  shall  not  have  been  any  just  cause  of  error,  he 
shall  be  obliged  to  make  compensation  for  the  damages  incurred,  and 
if  he  shall  have  proceeded  knowingly,  he  shall  also  be  subject  to  the 
respective  criminal  action ;  but  if  the  owner  of  the  materials  shall  have 
had  knowledge  of  the  use  being  made  of  them,  the  provisions  of  this 
article  only  shall  apply.* 

The  same  rule  applies  to  one  who  plants  or  sows  in  his  own  soil,  the 
plants  or  seeds  of  another. 

As  long  as  the  materials  are  not  incorporated  in  the  construction  or 
the  plants  placed  in  the  soil,  the  owner  may  recover  them. 

1613. 

Art.  739.  The  owner  of  land  upon  which  another  person,  without  his 
knowledge,  shall  have  built,  planted  or  sowed,  shall  have  a  right  to 
make  the  building,  planting  or  sowing  his  own,  upon  the  compensation 
prescribed  in  favor  of  possessors  in  good  or  bad  faith  in  the  Title  Of 
Revendication,  or  to  oblige  the  person  who  built  or  planted  to  pay  him 
a  just  price  for  the  land  with  legal  interest  for  all  the  time  he  may  have 
had  possession  thereof,  and  the  one  who  sowed  to  pay  him  the  rental 
and  indemnify  him  for  damages. 

If  the  building,  planting  or  sowing  shall  have  taken  place  with  the 
knowledge  and  consent  of  the  owner  of  the  land,  he  shall  be  obliged,  in 
order  to  recover  it,  to  pay  the  value  of  the  building,  planting  or  sowing. 

961  et  seq.,  1613. 

*  In  the  Code  of  Chile  the  latter  part  of  this  paragraph  is  as  follows:  '*.  .  .  the 
provisions  of  the  preceding  paragraph  only  shall  apply,"  and  not  ."of  this  article,"  as 
this  Code  incorrectly  states. 


i67 


TITLE  IV. 
Of  Tradition.* 

Chapter  i. 
General  Provisions. 

Art.  740.  Tradition  is  a  mode  of  acquiring  the  ownership  of  things, 
and  consists  in  the  delivery  which  the  owner  makes  of  them  to  another, 
there  being  on  the  one  part  the  power  and  intention  of  transferring  the 
ownership,  and  on  the  other  the  capacity  and  intention  of  acquiring  it. 

What  is  said  of  ownership  applies  to  all  other  real  rights. 

754,  756,  665. 

Art.  74 1 .  The  person  who  by  the  tradition  transfers  the  ownership  of 
the  thing  delivered  by  him,  is  called  the  transferrer  (tradente),  and  the 
person  who  by  the  tradition  acquires  the  ownership  of  the  thing  received 
by  him  or  in  his  name,  the  transferee  (adquirente) . 

The  mandataries  or  legal  representatives  of  the  owner  may  deliver  or 
receive  in  his  name. 

In  the  forced  sales  held  by  virtue  of  a  judicial  decree  on  the  petition  of 
a  creditor,  at  public  auction,  the  person  whose  ownership  is  transferred 
is  the  transferrer,  and  the  Judge  his  legal  representative. 

The  tradition  made  to  or  by  a  duly  authorized  mandatary,  is  under- 
stood to  have  been  made  to  or  by  the  respective  principal. 

62/1637,  1505,  2186. 

Art.  742.  In  order  that  the  tradition  be  valid,  it  must  be  voluntarily 
made  by  the  transferrer  or  by  his  representative. 

A  tradition  which  was  invalid  at  the  beginning  on  account  of  its  hav- 
ing been  made  without  the  will  of  the  transferrer  or  of  his  representative, 
is  validated  retroactively  by  the  ratification  of  the  person  who  has  the 
power  to  alienate  the  thing  as  owner  or  as  representative  of  the  owner. 

743  par.  2,  767,  1874,  2186  par.  2. 

Art.  743.  The  tradition,  in  order  to  be  valid,  requires  also  the  consent 
of  the  transferee,  or  of  his  representative. 

But  the  tradition  which  was  in  the  beginning  invalid,  on  account  of 
the  lack  of  such  consent,  is  validated  retroactively  by  the  ratification. 

767. 
*  See  La.  Civil  Code,  2477.     [2452.] 


1 68 

Art.  744.  In  order  that  the  tradition  made  by  and  to  mandataries  or 
legal  representatives  be  valid,  it  is  also  necessary  that  such  mandataries 
or  legal  representatives  act  within  the  powers  of  their  mandate  or  legal 
representation. 

766  No.  3,  1505,  2186. 

Art.  745.  In  order  that  a  tradition  be  valid,  a  title  transferring  owner- 
ship is  necessary,  such  as  a  bill  of  sale,  exchange,  donation,  etc. 

It  is  necessary,  in  addition,  that  the  title  be  valid  as  to  the  person  to 
whom  the  transfer  is  made.  Hence,  an  irrevocable  deed  of  donation 
does  not  transfer  the  ownership  between  spouses. 

765,  1 196  par.  3. 

Art.  746.  It  is  also  necessary  for  the  validity  of  the  tradition  that  no 
error  be  committed  as  to  the  identity  of  the  species  to  be  delivered,  or  as 
to  the  person  to  whom  the  delivery  is  made,  nor  as  to  the  title. 

If  an  error  be  committed  in  the  name  only,  the  tradition  is  valid. 

1508  to  1512,  1 1 16. 

Art.  747.  An  error  in  the  title  invalidates  the  tradition,  as  when  one 
of  the  parties  only  supposes  it  to  be  a  title  transferring  ownership,  or 
when  one  of  the  parties  has  the  intention  of  making  the  delivery  as  a 
commodatum,  and  the  other  party  has  the  intention  of  receiving  as  a 
donation,  or  when  both  parties  believe  the  instrument  to  be  one  trans- 
ferring ownership,  but  different,  as  when  one  party  believes  it  a  mutuum 
and  the  other  a  donation. 

Art.  748.  If  the  tradition  be  made  through  mandataries,  or  legal 
representatives,  the  error  of  the  latter  invalidates  the  tradition. 

Art.  749.  If  the  law  requires  special  formalities  for  the  alienation,  the 
ownership  is  not  transferred  without  them. 

1500,  1857  par.  2. 

Art.  750.  The  tradition  may  transfer  the  ownership  under  a  suspen- 
sive or  resolutory  condition,  provided  it  be  stipulated. 

The  delivery  having  been  made  by  the  vendor,  the  ownership  of  the 
thing  sold  is  transferred,  even  though  the  price  shall  not  have  been  paid, 
unless  the  vendor  shall  have  reserved  the  ownership  until  payment  is 
made,  or  until  a  condition  has  been  performed. 

1547,  1548,  1931,  1933,  1934,  1935- 
Art.  751.  The  tradition  of  all  that  which  is  due  may  be  demanded, 


1 69 

provided  there  be  no  period  pending  for  its  payment ;  unless  a  judicial 
decree  to  the  contrary  should  issue. 

1605. 

Art.  752.  If  the  transferrer  be  not  the  real  owner  of  the  thing  de- 
livered by  him  or  in  his  name,  no  rights  are  acquired  by  means  of  the 
tradition,  except  the  transferable  ones  of  the  transferrer  in  the  thing 
delivered. 

But  if  the  transferrer  afterwards  acquires  the  ownership,  it  shall  be 
understood  that  the  latter  was  transferred  at  the  time  of  the  tradition. 

833  par.  3,  851,  1 168,  1633,  2004,  2441,  767,    779  par.   2,  1874, 
1875,  i93i,  753- 

Art.  753.  The  tradition  gives  the  transferee,  in  the  manner  and  cases 
prescribed  by  law,  the  right  to  acquire  by  prescription  the  ownership 
which  the  transferrer  lacked,  even  though  the  transferrer  did  not  have 
such  right. 

2518,  2521,  2526  to  2529,  2531  to  2533. 


Chapter  2. 

Of  the  Tradition  of  Corporeal  Movables. 

Art.  754.  The  tradition  of  a  corporeal  movable  thing  must  be  made 
by  one  of  the  parties  signifying  to  the  other  that  he  transfers  the  owner- 
ship, such  transfer  being  effected  in  one  of  the  following  manners : 

1 .  By  permitting  him  to  take  material  possession  of  a  present  thing. 

2.  By  showing  it  to  him. 

3.  By  delivering  to  him  the  keys  of  the  granery,  warehouse,  chest  or 
any  place  in  which  the  thing  is  kept. 

4.  By  one  agreeing  to  deliver  the  thing  to  the  other  in  a  place  agreed 
upon. 

5.  By  the  sale,  donation  or  other  title  of  alienation  granted  to  him  who 
has  the  movable  thing  as  usufructuary,  lessee,  bailee,  depositary,  or  any 
other  title  which  does  not  transfer  ownership;  and  mutually  by  the 
mere  contract  in  which  the  owner  constitutes  himself  usufructuary, 
bailee,  lessee,  etc. 

673. 

Art.  755.  When,  with  the  permission  of  the  owner  of  an  estate,  stones, 
hanging  fruits,  or  other  things  which  form  a  part  of  the  estate  are  taken, 
the  tradition  takes  place  at  the  moment  of  the  separation  of  these  objects. 


170 

He  to  whom  the  fruits  of  a  vineyard  or  of  sown  or  planted  land  are 
owed,  may  enter  thereon  to  take  them,  at  a  day  and  hour  fixed  by  agree- 
ment with  the  owner. 

715. 

Chapter  3. 

Of  Other  Kinds  of  Tradition. 

Art.  756.  The  tradition  of  the  ownership  of  real  property  shall  be 
effected  by  the  recording  of  the  title  in  the  Office  of  Registration  of  pub- 
lic instruments. 

The  tradition  of  rights  of  usufruct  and  use  constituted  in  real  property, 
and  those  of  habitation  or  mortgage,  shall  be  effected  in  the  same  manner. 

673,  757  to  760,  796  par.  2,  826,  871,  1457,  1857  par.  2,  2652  par.  1, 
1873*  785,  789,  749,  1500,  2526,  2652,  et  seq.  93  last  par.  and 
106  of  law  153  of  1887. 

Art.  757.  At  the  moment  inheritance  is  deferred,  the  possession 
thereof  is  conferred  by  operation  of  law  upon  the  heir;  but  this  legal 
possession  does  not  empower  him  to  dispose  of  an  immovable  in  any 
manner  whatsoever  until : 

1 .  The  issue  of  the  judicial  decree  giving  actual  possession. 

2,  The  registration  of  such  judicial  decree  and  of  the  titles  conferring 
the  ownership. 

783,  1013. 

Art.  758.  Whenever  by  a  final  judgment  ownership  or  any  of  the  rights 
mentioned  in  the  preceding  articles  of  this  chapter  shall  be  recognized 
as  acquired  by  prescription,  such  judgment  shall  serve  as  a  title,  after  its 
registration  in  the  proper  office  or  offices. 

2534- 

Art.  759.  Titles  transferring  ownership  which  require  registration, 
shall  not  give  or  transfer  the  actual  possession  of  the  respective  right 
until  the  registration  shall  have  been  made  as  prescribed  in  the  Title 
Of  the  Registration  of  Public  Instruments. 

2673,  2674. 

Art.  760.  The  tradition  of  a  right  of  servitude  shall  be  effected  by  a 
public  instrument,  duly  recorded,  in  which  the  transferrer  expresses  that 
he  constitutes  it  and  the  transferee  that  he  accepts  it ;  such  instrument 
may  be  the  same  as  that  embodying  the  principal  act  or  contract  to 
which  the  constitution  of  the  servitude  is  accessory. 

1760. 


171 

Art.  761.  The  tradition  of  the  personal  rights  which  one  person  as- 
signs to  another,  shall  be  effected  by  the  delivery  of  the  title,  made  by  the 
assignor  to  the  assignee. 

1 185  par.  2,  1959,  etseq.,  1634  par.  2       33  of  law  57  of  1887. 


TITLE  Vll. 

.  Of  Possession. 

Chapter  i. 

Of  Possession  and  its  Different  Kinds. 

Art.  762.  Possession  is  the  seizin  of  a  determined  thing  with  intention 
of  ownership,  whether  the  owner  of  the  person  claiming  to  be  such,  has 
the  thing  himself,  or  by  another  person  in  his  place  and  name. 

The  possessor  is  considered  the  owner,  as  long  as  another  person  does 
not  establish  his  ownership. 

669,  775,  786,  785,  787  to  792,  2195,  2194,  66. 

Art.  763.  A  thing  may  be  possessed  under  various  titles. 

Art.  764.  Possession  may  be  regular  or  irregular. 

Regular  possession  is  that  arising  from  a  just  title  and  acquired  in 
good  faith,  even  though  the  good  faith  should  not  subsist  after  the  pos- 
session has  been  acquired. 

Consequently,  one  may  be  a  regular  possessor  and  a  possessor  in  bad 
faith,  and,  vice  versa,  a  bona  fide  possessor  may  be  an  irregular  one. 

If  the  title  be  one  transferring  ownership,  tradition  is  also  necessary. 

The  possession  of  a  thing,  with  the  knowledge  and  consent  of  the  per- 
son who  bound  himself  to  deliver  it,  shall  cause  a  presumption  of  tradi 
tion ;  unless  it  were  necessary  to  effect  the  latter  by  the  registration  ol 
the  title. 

770,  2528. 

Art.  765.  A  just  title  is  one  which  constitutes  or  transfers  ownership. 
Occupancy,  accession  and  prescription  are  constitutive  of  ownership. 
Titles  transferring  ownership  are  those  which  by  their  nature  serve  to 
transfer  it,  such  as  bills  of  sale,  exchanges,  donations  inter  vivos. 


172 

Decrees  of  adjudication  in  proceedings  for  division,  and  legal  acts  of 
partition,  belong  to  this  class. 

Judicial  decisions  on  rights  in  litigation  do  not  serve  as  a  new  title  to 
legalize  the  possession. 

Transactions  (or  compromises)  in  so  far  as  they  are  limited  to  the 
recognition  or  declaration  of  pre-existing  rights,  do  not  form  a  new  title ; 
but  when  they  transfer  the  ownership  of  an  object  not  the  subject  of  dis- 
pute, they  constitute  a  new  title. 

673,  745,  2483. 

Art.  766.  The  following  are  not  just  titles : 

1 .  Forged  ones,  that  is  to  say,  those  not  really  executed  by  the  per- 
son alleged.  » 

2.  Those  conferred  by  persons  in  the  capacity  of  mandataries  or  legal 
representatives,  without  being  so.  • 

3.  Those  which  contain  any  defect  avoiding  them,  as  an  alienation 
which  requires  authorization  by  a  legal  representative  or  by  a  judicial 
decree,  and  has  not  been  so  authorized. 

4.  Those  merely  putative,  as  that  of  an  apparent  heir  who  is  not  in 
reality  an  heir;  that  of  the  legatee,  whose  legacy  has  been  revoked  by  a 
subsequent  testamentary  act,  etc. 

Nevertheless,  the  putative  heir  to  whom  actual  possession  may  have 
been  given  by  a  judicial  decree,  shall  secure  a  just  title  by  the  decree,  as 
a  testamentary  act  judicially  recognized  shall  serve  as  a  just  title  to  the 
putative  legatee. 

744,  1507,  2186,  1326. 

Art.  767.  The  validation  of  a  title  which  was  previously  void,  by  a 
ratification,  or  by  any  other  legal  means,  retroacts  to  the  date  upon 
which  the  title  was  conferred. 

742  par.  2,  743  par.  2,  1874,  1931,  2186  par.  2,  752  par.  2. 

Art.  768.  Good  faith  is  the  conscience  of  having  acquired  the  owner- 
ship of  a  thing  by  legal  means,  exempt  of  fraud  and  any  other  defect. 

Hence,  in  titles  transferring  ownership,  good  faith  presumes  the  idea 
of  having  received  the  thing  of  one  who  had  the  power  to  alienate  it  and 
that  there  was  no  fraud  or  other  vice  in  the  act  or  contract. 

A  just  error  in  a  matter  of  fact,  is  not  opposed  to  good  faith. 

But  an  error  in  a  matter  of  law  constitutes  a  presumption  of  bad  faith, 
which  does  not  admit  of  proof  to  the  contrary. 

1508  to  1512,  9,  2315,  2317,  66  par.  4. 

Art.  769.  Good  faith  is  presumed,  excepting  in  the  cases  in  which  the 
law  establishes  a  different  presumption. 


173 

In  all  other  cases  the  bad  faith  must  be  proved. 

66  pars.  2  and  3,  109  subdiv.  5,  964  par.  3,  2351  subdivisions  2 
and  3,  1516. 

Art.  770.  Irregular  possession  is  that  which  lacks  one  or  more  of  the 
requisites  prescribed  in  article  764. 

2528,  2531  No.  1. 

Art.  771.  Defective  (vicious)  possessions  are  violent  and  clandestine. 
Art.  772.   Violent  possession  is  that  which  is  acquired  by  force. 
The  force  may  be  present  or  imminent. 

1513,  1514- 

Art.  773.  He,  who  in  the  absence  of  the  owner  shall  lake  possession 
of  a  thing,  and  upon  return  of  the  owner  shall  repel  him,  is  also  a  vio- 
lent possessor. 

790,  984,  982. 

Art.  774.  The  defect  of  violence  is  present,  whether  it  has  been  em- 
ployed against  the  true  owner  of  the  thing,  or  against  him  who  possessed 
it  without  being  the  owner,  or  against  him  who  held  it  in  the  place  or  in 
the  name  of  another. 

It  is  the  same  thing  if  the  violence  be  employed  by  a  person  or  by  his 
agents,  and  that  it  be  employed  with  his  consent,  or  that  after  use 
thereof  it  be  expressly  or  impliedly  ratified. 

Clandestine  possession  is  that  exercised  by  concealing  it  from  those 
who  have  a  right  to  object  thereto. 

Art.  775.  Mere  tenancy  is  that  exercised  over  a  thing,  not  as  owner, 
but  in  the  place  or  name  of  the  owner.  The  pledge  creditor,  seques- 
trator, usufructuary,  user,  he  who  has  the  right  of  habitation,  are  mere 
tenants  of  the  thing  pledged,  sequestered,  or  whose  usufruct,  use  or 
habitation  may  belong  to  them. 

What  is  said  applies  generally  to  all  who  hold  a  thing  recognizing  the 
ownership  of  another. 

762,  777,  2418,  2419,  665,  670,  978,  984,  1988,  2342. 

Art.  776.  The  possession  of  incorporeal  things  is  susceptible  of  the 
Line  qualities  and  vices  as  the  possession  of  a  corporeal  thing. 

664. 

Art.  777.  A  simple  lapse  of  time  does  not  convert  mere  tenancy  into 
>ssession. 

2531,  rule  3,  condition  2. 


174 

Art.  778.  Whether  one  succeeds  under  a  universal  or  singular  title,  the 
possession  of  the  successor  begins  at  the  time  thereof;  unless  he  shall 
desire  to  add  that  of  his  predecessor  to  his  own ;  but  in  such  case  he  ap- 
propriates it  together  with  its  qualities  and  vices. 

One's  own  possession  may  be  added  in  the  same  terms  to  that  of  an 
uninterrupted  series  of  predecessors. 

779,  1034,  252i. 

Art.  779.  Bach  of  the  participants  in  a  thing  which  was  possessed 
pro  indiviso,  shall  be  understood  to  have  possessed  exclusively  the  part 
which  he  may  receive  in  the  division,  throughout  the  entire  time  of  the 
duration  of  the  indi vision. 

He  may  therefore,  add  such  time  to  that  of  the  exclusive  possession, 
and  the  alienations  which  may  have  been  made  by  himself  of  the  thing  in 
common,  and  the  real  rights  which  he  may  have  placed  thereon,  shall 
subsist  upon  said  part  if  it  shall  have  been  included  in  the  alienation  or 
encumbrance. 

But  if  what  was  alienated  or  encumbered  extends  to  more,  the  aliena- 
tion or  encumbrance  shall  not  subsist  against  the  will  of  the  respective 
grantees. 

2525,  1401,  2442,  752. 

Art.  780.  If  the  possession  has  begun  under  one's  own  name,  it  shall 
be  presumed  that  this  possession  has  continued  to  the  moment  when  it  is 
pleaded. 

If  the  possession  was  begun  in  the  name  of  another,  the  continuation 
of  the  same  order  of  things  shall  likewise  be  presumed. 

If  anyone  shall  prove  that  he  had  former  possession,  and  actually  pos- 
sesses, the  possession  in  the  intermediate  time  is  presumed. 

66,  792,  2522  to  2525. 

Art.  781.  Possession  maybe  taken  not  only  by  one  who  desires  to 
acquire  it  for  himself,  but  also  by  his  mandatary,  or  by  his  legal  repre- 
sentatives. 

1505  to  1507,  784,  782,  2158,  62. 


Chapter  2. 

Of  Modes  of  Acquiring  and  Losing  Possession. 

Art.  782.  If  a  person  takes  possession  of  a  thing,  in  the  stead  or  name 
of  another  of  whom  he  is  the  mandatary  or  legal  representative,  the  pos- 
session of  the  principal  begins  at  the  same  instant,  even  though  it  were 
without  his  consent. 


175 

If  he  who  takes  the  possession  in  the  name  of  another  person  is  not  his 
mandatary  or  representative,  such  person  shall  not  possess  except  by 
virtue  of  his  knowledge  and  acceptance ;  but  his  possession  shall  retroact 
to  the  moment  it  was  taken  in  his  name. 

781,  1 505  to  1507. 

Art.  783.  The  possession  of  an  inheritance  is  acquired  at  the  moment 
it  is  deferred,  even  though  the  heir  be  ignorant  thereof. 

He  who  validly  repudiates  an  inheritance,  is  understood  as  never  hav- 
ing possessed  it. 

757,  ioi3par.  2. 

Art.  784.  Those  who  cannot  freely  administer  their  property,  do  not 
require  any  authorization  to  acquire  possession  of  a  movable  thing,  pro- 
vided that  intent  and  material  or  legal  seizure  be  present ;  but  they  can- 
not exercise  the  rights  of  possession  without  the  proper  authority. 

Insane  persons  and  infants  are  incapable  of  acquiring  possession  by 
their  will,  whether  for  themselves  or  for  others. 

480,  1636. 

Art.  785.  If  the  thing  is  of  those  whose  tradition  must  take  place  by 
inscription  upon  the  register  of  public  instruments,  no  one  can  acquire 
the  possession  thereof,  except  by  this  means. 

756. 

Art.  786.  The  possessor  retains  the  possession,  even  though  he  trans- 
fer the  seizin  of  the  thing,  giving  it  in  lease,  commodatum,  pledge,  de- 
posit, usufruct,  or  under  any  other  title  which  does  not  transfer  owner- 
ship. 

762,  775,670,  765  par.  3. 

Art.  787.  The  possession  of  a  thing  ceases  when  another  takes  it  with 
the  intention  of  making  it  his  own,  excepting  in  the  cases  which  the  law 
expressly  excepts. 

790,  789  par.  2,  791,  792,957- 

Art.  788.  The  possession  of  a  movable  thing  is  not  understood  to  be 
lost  while  it  is  in  the  power  of  the  possessor,  even  though  the  latter  tem- 
porarily ignores  its  whereabouts. 

Art.  789.  In  order  that  registered  possession  may  cease,  it  is  necessary 
that  the  record  be  cancelled,  either  by  the  will  of  the  parties  or  by  a  new 
record  in  which  the  registered  possessor  transfers  his  right  to  another,  or 
by  judicial  decree. 


i76 

As  long  as  the  record  subsists,  he  who  obtains  the  thing  which  is 
the  subject-matter  of  the  record,  does  not  acquire  the  possession  thereof 
nor  does  he  put  an  end  to  the  existing  possession. 

791  par.  2,  980,  2526. 

Art.  790.  If  a  person,  claiming  to  be  the  owner,  violently  or  clandes- 
tinely takes  possession  of  an  immovable,  the  title  of  which  is  not  of 
record,  he  who  had  the  possession  loses  it. 

787,  789  par.  2,  984. 

Art.  791.  If  he  who  has  the  thing  in  the  place  and  name  of  another, 
usurps  it,  proclaiming  himself  the  owner  thereof,  the  possession  is  not 
lost  on  the  one  side,  nor  acquired  on  the  other,  unless  the  usurper  alien- 
ates the  thing  in  his  own  name.  In  such  case  the  person  to  whom  it  may 
be  alienated  acquires  the  possession  of  the  thing  and  puts  an  end  to  the 
previous  possession. 

Nevertheless,  if  he  who  has  the  thing  in  the  place  and  name  of  a  regis- 
tered possessor,  passes  himself  as  the  owner  thereof  and  alienates  it,  the 
possession  is  not  lost  on  one  side,  nor  is  it  acquired  on  the  other,  without 
the  proper  record. 

787,  789  par.  2,  1871. 

Art.  792.  He  who  legally  recovers  the  lost  possession,  shall  be  under- 
stood to  have  had  it  during  the  intermediate  time. 

66,  780  par.  3,  864,  2523. 


/  / 


TITLE  VIII. 

Of  Limitations  of  Ownership  and  Primarily  of  Fiduciary  Property. 

Art.  793.  Ownership  may  be  limited  in  various  ways : 

1.  By  reason  of  having  to  pass  to  another  person  by  virtue  of  a  con- 
dition. 

799. 

2.  By  the  charge  of  a  usufruct,  use  or  habitation  to  which  a  person 
may  be  entitled  in  things  belonging  to  another. 

3.  By  servitudes. 

Art.  794.  Fiduciary  property  is  called  that  which  is  subject  to  a  charge 
of  passing  to  another  person  upon  the  fulfillment  of  a  condition. 

The  constitution  of  the  fiduciary  property  is  called  a  fidei  commissum.* 

This  name  is  also  given  to  the  thing  constituted  fiduciary  property. 

The  transfer  of  the  property  to  the  person  in  whose  favor  the  fidei 
commissum  has  been  established,  is  called  restitution. 

1 145,  1677  No.  8. 

Art.  795.  A  fidei  commissum  can  be  constituted  only  upon  an  entire 
estate  or  upon  a  specific  quota  thereof,  or  upon  one  or  more  determined 
objects. 

1 1 24. 

Art.  796.  Fidei  commissa  may  be  constituted  only  by  an  act  inter  vivos 
contained  in  a  public  instrument,  or  by  a  testamentary  act. 

The  constitution  of  every  fidei  commissum  which  comprises  or  affects 
an  immovable,  must  be  recorded  in  the  proper  register. 

1758,  1760,  6  par.  2,  1500,  756,  1308. 

Art.  797.  The  same  property  may  be  constituted  in  usufruct  in  favor 
of  one  person  and  fidei  commissum  in  favor  of  another. 

Art.  798.  The  cestui  que  trust  may  be  a  person  who  at  the  time  of  the 
creation  of  the  fiduciary  property  did  not  exist,  but  who  is  expected  to 
come  into  existence. 

Art.  799.  A  fidei  commissum  always  presumes  the  express  or  implied 

*  A  species  of  trust:  being  a  gift  of  property  (usually  by  will)  to  a  person,  accom- 
panied by  a  request  or  direction  of  the  donor  that  the  recipient  will  transfer  the  prop- 
erty to  another,  the  latter  being  a  person  not  capable  of  taking  directly  under  the  will 
or  gift.     (Black's  Law  Dictionary.) 


i78 

condition  of  the  existence  of  the  cestui  que  trust  or  his  substitute,  at  the 
time  of  the  restitution. 

To  this  condition  others  may  be  added  jointly  or  separately. 

793  No.  i,  821,  1019,  1 143. 

Art.  800.  Any  condition  upon  which  the  restitution  of  a  fidei  com- 
missum  depends,  and  which  takes  more  than  thirty  years  to  mature,  shall 
be  considered  as  lapsed,  unless  the  death  of  trustee  be  the  event  upon 
which  the  restitution  depends. 

These  thirty  years  shall  be  counted  from  the  date  of  the  delation  of  the 
fiduciary  property. 

829,  1 145  par.  3,  1539,  ioi3-     30  of  law  153  of  1887. 

Art.  801.  Stipulations  limited  to  a  day  certain  which  are  not  equiva- 
lent to  conditions,  according  to  the  rules  of  the  Title  on  Testamentary 
Assignments,  Chapter  3,  do  not  constitute  a  fidei  commissum. 

1 142,  1 148. 

Art.  802.  He  who  creates  a  fidei  commissum,  may  appoint  not  only 
one  but  two  or  more  trustees,  and  two  or  more  cestui  que  trusts. 

1470,  1471. 

Art.  803.  The  constituent  may  give  the  cestui  que  trust  the  substitutes 
he  may  desire,  to  provide  against  his  ceasing  to  exist  before  the  restitu- 
tion, by  death  or  otherwise. 

These  substitutions  may  be  of  different  classes,  one  person  substituting 
the  cestui  que  trust  in  the  first  place,  another  taking  the  place  of  the  first 
substitute,  another  that  of  the  second,  and  so  on. 

1217,  1218,  1223,  1224. 

Art.  804.  No  substitutes  but  those  expressly  designated  in  the  respec- 
tive act  inter  vivos  or  testament,  shall  be  recognized. 

Art.  805.  The  constitution  of  two  or  more  successive  fidei  commissa, 
so  that  when  a  fidei  commissum  is  restored  to  a  person  the  latter  acquires 
it  under  the  charge  of  eventually  restoring  it  to  another,  is  forbidden. 

If  they  should  in  fact  be  created,  after  the  fidei  commissum  shall  have 
been  acquired  by  one  of  the  cestuis  que  trustent  appointed,  the  expecta- 
tions of  the  others  shall  be  extinguished  forever. 

828.     31  par.  2  of  law  153  of  1887. 

Art.  806.  If  one  or  more  cestuis  que  trustent  in  the  first  place  are  ap- 
pointed whose  existence  is  to  be  awaited  in  accordance  with  the  provisions 


179 

of  article  798,  the  entire  fidei  commissum  shall  be  restored  at  the  proper 
time  to  the  existing  cestuis  que  trustent,  and  the  others  shall  enter  upon 
the  enjoyment  thereof  as  the  condition  imposed  with  regard  to  each 
shall  mature.  But  upon  the  expiration  of  the  period  fixed  in  article  800, 
no  further  cestui  que  trust  shall  be  entered  thereon. 

1 1 24  par.  2. 

Art.  807.  When  in  the  constitution  of  the  fidei  commissum  the  trustee 
shall  not  be  expressly  designated,  or  when  for  any  cause  the  trustee  ap- 
pointed shall  be  absent,  the  condition  being  still  pending,  the  constituent 
himself  shall  fiduciarily  enjoy  the  property,  if  living,  or  his  heirs,  other- 
wise. 

Art.  808.  If  it  should  be  provided  that  during  the  pendency  of  the 
condition  the  fruits  be  reserved  for  the  person  who  by  virtue  of  the  ful- 
fillment or  non-fulfillment  of  the  condition,  shall  acquire  the  absolute 
ownership,  he  who  administers  the  property  shall  be  a  fiduciary  holder 
who  shall  only  have  the  powers  of  curators  ad  bona. 

575  etseq. 

Art.  809.  If  there  be  two  or  more  fiduciary  owners,  there  shall  exist 
between  them  the  right  of  accretion,  according  to  the  provisions  of  article 
839  regarding  usufructs. 

Art.  810.  Fiduciary  property  may  be  alienated  inter  vivos  and  trans- 
mitted mortis  causa,  but  in  either  case  with  the  proviso  of  maintaining  it 
undivided,  and  subject  to  the  charge  of  restitution,  under  the  same  con- 
ditions as  before. 

Nevertheless,  it  shall  not  be  transmissible  by  testament  or  ab  intestato, 
when  the  day  fixed  for  the  restitution  is  that  of  the  date  of  the  death  of 
the  trustee;  and  in  such  case,  if  the  trustee  shall  alienate  it  during  life, 
his  death  shall  always  determine  the  date  of  restitution. 

832  par.  2,  1 142. 

Art.  811.  When  the  constituent  shall  have  given  the  fiduciary  prop- 
erty to  two  or  more  persons,  according  to  article  802,  or  when  the  rights 
of  the  trustee  are  transferred  to  two  or  more  persons  according  to  the 
preceding  article,  the  Judge  may,  on  petition  of  any  of  them,  entrust  the 
administration  thereof  to  the  person  giving  the  best  surety  of  preser- 
vation. 

Art.  812.  If  one  and  the  same  person  should  be  the  trustee  of  one 
quota  and  the  absolute  owner  of  the  other,  he  shall  exercise  over  both  the 
rights  of  a  trustee,  as  long  as  the  property  remains  undivided ;  but  he 
may  demand  the  division. 

The  persons  designated  in  article  820  shall  take  part  therein. 

1374- 


i8o 

Art.  813.  The  fiduciary  owner  has  over  the  species  which  he  may  be 
required  to  restore,  the  rights  and  obligations  of  a  usufructuary,  with 
the  modifications  indicated  in  the  following  articles. 

834  etseq. 

Art.  814.  He  is  not  obliged  to  give  surety  of  preservation  and  resti- 
tution, except  by  virtue  of  a  decision  of  the  Judge,  so  ordering  it  as  a 
precautionary  measure,  when  requested  so  to  do  in  accordance  with  the 
provisions  of  article  820. 

820  par.  2,  834,  872. 

Art.  815.  He  is  bound  to  defray  all  extraordinary  expenditures  for  the 
preservation  of  the  thing,  including  the  payment  of  the  debts  and  mort- 
gages to  which  it  may  be  subject ;  but  when  the  time  for  restitution  shall 
arrive  he  shall  be  entitled  first  to  reimbursement  by  the  cestui  que  trust 
of  said  expenditures,  reduced  to  the  sum  which  with  average  intelligence 
and  care  they  should  have  reached,  and  with  the  following  deductions : 

1.  If  they  have  been  expended  in  material  works,  such  as  dikes, 
bridges,  walls,  he  shall  not  be  reimbursed  except  to  the  extent  of  what 
they  are  worth  at  the  time  of  restitution. 

2.  If  they  have  been  expended  in  immaterial  things,  such  as  the  pay- 
ment of  a  mortgage  or  the  costs  of  litigation  which  he  could  not  have 
abandoned  without  endangering  the  rights  of  the  cestui  que  trust,  one- 
twentieth  shall  be  deducted  from  what  they  may  have  cost,  for  each  year 
which  has  elapsed  to  the  day  of  the  restitution ;  and  if  more  than  twenty 
years  shall  have  elapsed  since  the  expense  was  incurred,  nothing  shall  be 
due  on  this  account. 

965- 

Art.  816.  With  regard  to  the  imposition  of  mortgages,  servitudes  or 
any  other  charge,  the  property  held  in  trust  shall  be  combined  with  the 
property  of  the  person  living  under  tutorship  or  curatorship,  and  the 
powers  of  the  trustee  with  those  of  the  tutor  or  curator.  If  said  charges 
shall  have  been  imposed  without  previous  judicial  authorization,  after  an 
investigation  and  a  hearing  of  those  who,  according  to  article  820,  have  a 
right  to  request  the  taking  of  conservatory  measures,  the  cestui  que 
trust  shall  not  be  obliged  to  recognize  them. 

483. 

Art.  817.  As  to  the  rest,  the  trustee  has  the  free  administration  of  the 
property  comprised  in  the  fidei  commissum,  and  may  change  the  form 
thereof,  but  always  preserving  their  integrity  and  value. 


i8i 

He  shall  be  responsible  for  the  impairment  and  deterioration  due  to 
his  act  or  fault. 

Art.  8  i 8.  The  trustee  shall  not  have  the  right  to  demand  anything  by- 
reason  of  unnecessary  improvements,  unless  he  shall  have  agreed  thereon 
with  the  cestui  que  trust  to  whom  the  restitution  is  made;  but  he  may 
Dppose  as  a  set  off  the  increase  in  value  which  the  improvements  may 
have  produced  in  the  property,  to  the  extent  of  the  indemnity  he  may 
owe. 

860. 

Art.  819.  If  by  the  constitution  of  the  ftdei  commissum  the  trustee  be 
expressly  granted  the  right  of  enjoying  the  property  at  his  pleasure,  he 
shall  not  be  responsible  for  any  impairment. 

If,  in  addition,  he  be  granted  the  free  disposition  of  the  property,  the 
cestui  que  trust  shall  have  the  right  to  demand  only  that  which  exists  at 
the  time  of  the  restitution. 

Art.  820.  The  cestui  que  trust,  during  the  pendency  of  the  condition 
has  no  right  over  the  fidei  commissum,  but  the  simple  expectation  of 
acquiring  it. 

He  may,  nevertheless,  request  such  precautionary  measures  as  he  may 
deem  advisable,  if  the  property  should  appear  to  be  in  danger,  or  to  be- 
come impaired  in  the  hands  of  the  trustee. 

The  same  right  shall  be  had  by  the  legitimate  ascendants  of  the  cestui 
que  trust  who  does  not  as  yet  exist  and  whose  existence  is  expected,  and 
the  managers  or  representatives  of  the  corporations  and  foundations 
interested. 

1 138  etseq.,  1470,  1471,  1354,  1128,  1542. 

Art.  821.  A  cestui  que  trust  dying  before  the  restitution,  does  not 
transmit  by  testament  or  ah  intestato  any  right  to  the  fidei  commissum, 
not  even  the  mere  expectation,  which  passes  ipso  jure  to  the  substitute  or 
substitutes  designated  by  the  constituent,  if  there  be  any. 

799,  1019. 

Art.  822.  The  fidei  commissum  is  extinguished : 

1 .  By  the  restitution. 

2.  By  the  resolution  of  the  right  of  the  constituent,  as  when  the  fidei 
commissum  has  been  constituted  on  a  thing  purchased  with  a  clause  of 
resale,  and  the  resale  takes  place. 

3.  By  the  destruction  of  the  thing  upon  which  it  is  constituted,  in 
accordance  with  the  provisions  respecting  usufructs  in  article  866. 

4.  By  the  renunciation  of  the  cestui  que  trust  before  the  date  of  the 
restitution ;  without  prejudice  to  the  rights  of  the  substitutes. 


it* 

5.  By  the  absence  of  the  condition  or  its  non-performance  in  due  time. 

6.  By  the  confounding  of  the  quality  of  the  only  cestui  que  trust  with 
that  of  the  only  trustee. 

794  last  par.,  863,  865,  866,  868,  1724. 


TITLE  IX. 

Of  the  Right  of  Usufruct.* 

Art.  823.  The  right  of  usufruct  is  a  real  right  which  consists  in  the 
power  of  enjoying  a  thing  with  the  charge  of  preserving  its  form  and  sub- 
stance, and  with  the  obligation  of  returning  it  to  its  owner,  if  the  thing 
be  not  a  fungible  one ;  or  with  the  obligation  of  returning  an  equal  quan- 
tity or  quality  of  the  same  kind,  or  to  pay  its  value,  if  the  thing  be  fun- 
gible. 

665,  786,  817,  2200,  2221,  1973. 

Art.  824.  A  usufruct  necessarily  supposes  two  co-existing  rights,  that 
of  the  naked  owner,  and  that  of  the  usufructuary. 

It  has,  therefore,  a  limited  duration,  upon  the  expiration  of  which  it 
passes  to  the  naked  owner  and  is  merged  with  the  ownership. 

669  par.  2,  670,  950,  978. 

Art.  825.  The  right  of  usufruct  may  be  constituted  in  several  manners : 

1 .  By  law,  as  that  of  the  father  of  a  family,  in  certain  property  of  the 
child. 

2.  By  testament. 

3.  By  donation,  sale  or  other  act  inter  vivos. 

4.  A  usufruct  may  also  be  acquired  by  prescription. 

291. 

Art.  826.  A  usufruct  which  is  to  be  established  on  real  property  by  an 
act  inter  vivos,  shall  not  be  valid  unless  it  be  granted  in  a  registered 
public  instrument. 

1758,  756,  796  par.  2,  1500. 
*  La.  Civil  Code,  533  [525]  to  625  [620]. 


1 83 

Art.  827.  The  establishment  of  any  usufruct  under  a  condition  or  for 
any  term  which  suspends  its  exercise,  is  forbidden.  If  it  should  in  fact  be 
established,  it  shall  possess  no  value. 

Nevertheless,  if  the  usufruct  be  established  by  testament,  and  the  con- 
dition has  been  fulfilled,  or  the  term  expired  before  the  death  of  the  tes- 
tator, the  usufruct  shall  be  valid. 

794,  799- 

Art.  828.  The  establishment  of  two  or  more  successive  or  alternative 
usufructs  is  forbidden. 

If  they  should  in  fact  be  established,  the  subsequent  usufructuaries 
shall  be  considered  as  substitutes,  in  the  event  of  the  absence  of  the  pre- 
ceding ones,  before  the  first  usufruct  shall  have  been  deferred. 

The  first  usufruct  which  may  be  effective  shall  cause  the  others  to 
expire;  but  it  shall  last  only  for  the  time  which  may  have  been  desig- 
nated therefor. 

805.     31  of  law  153  of  1887. 

Art.  829.  A  usufruct  may  be  established  for  a  specific  time  or  for  the 
entire  life  of  the  usufructuary. 

When  in  the  constitution  of  the  usufruct  no  time  for  the  duration 
thereof  is  fixed,  it  shall  be  understood  as  established  for  the  lifetime  of 
the  usufructuary. 

A  usufruct  established  in  faver  of  a  corporation  or  foundation  of  any 
kind  cannot  exceed  thirty  years. 

830,800.     30of  law  153  of  1887. 

Art.  830.  A  condition  may  be  added  to  a  usufruct  established  for  a 
determinate  time,  or  for  the  lifetime  of  the  usufructuary,  according  to 
the  preceding  articles,  upon  the  fulfillment  of  which,  it  is  merged  with 
the  ownership. 

If  the  condition  be  not  fulfilled  before  the  expiration  of  said  time  or 
before  the  death  of  the  usufructuary,  as  the  case  may  be,  it  shall  be  con- 
sidered as  unwritten. 

Art.  831.  A  usufruct  may  be  established  in  favor  of  two  or  more  per- 
sons to  enjoy  it  simultaneously,  equally,  or  according  to  the  shares  de- 
termined by  the  constituent,  and  in  such  case  the  usufructuaries  may 
divide  the  usufruct  among  themselves,  in  any  manner  that  they  may 
see  fit. 

Art.  832.  The  naked  ownership  may  be  transferred  by  an  act  inter 
vivos,  and  transmitted  mortis  causa. 

A  usufruct  cannot  be  transferred  by  testament  or  ab  intestato. 

810,  865  par.  2,  1 213. 


184 

Art.  833.  The  usufructuary  is  obliged  to  receive  the  thing  subject  to 
the  usufruct  in  the  condition  in  which  it  was  at  the  time  of  the  delation 
thereof,  and  shall  be  entitled  to  indemnification  for  any  impairment  or 
deterioration  the  thing  may  have  suffered  since  then,  in  the  power  and 
by  the  fault  of  the  owner. 

851,  1176,  1013. 

Art.  834.  The  usufructuary  cannot  have  the  thing  subject  to  the  usu- 
fruct without  having  first  given  sufficient  surety  for  its  preservation  and 
restitution,  and  without  an  inventory  formally  made  at  his  cost,  such  as 
that  required  of  curators  ad  bona. 

But  both  he  who  establishes  the  usufruct  and  the  owner,  may  relieve 
the  usufructuary  from  giving  surety. 

The  donor  who  reserves  the  usufruct  of  the  thing  donated,  is  not  re- 
quired to  give  surety. 

The  surety  of  the  usufructuary  of  fungible  things  shall  be  reduced  to 
the  obligation  of  restoring  goods  to  the  same  amount  and  of  the  same 
quality,  or  their  value  at  the  time  of  the  restitution. 

293,  814,  820  par.  2,  872,  1 198  par.  2,  297. 

Art.  835.  Until  the  usufructuary  shall  give  the  surety  required  of  him, 
and  until  the  inventory  shall  be  concluded,  the  owner  shall  have  the  ad- 
ministration with  the  obligation  of  giving  the  net  value  of  the  fruits  to 
the  usufructuary. 

834,  837- 

Art.  836.  If  the  usufructuary  does  not  furnish  the  surety  requiredjof 
him,  within  a  reasonable  time,  fixed  by  the  Judge,  on  the  petition  of  the 
owner,  the  administration  shall  be  awarded  to  the  latter,  with  the  obli- 
gation of  paying  the  usufructuary  the  net  value  of  the  fruits,  after  de- 
ducting the  sum  which  the  Judge  shall  fix  in  advance  for  the  work  and 
care  of  the  administration. 

He  may  also  in  such  case  take  the  thing  subject  to  the  usufruct  in 
lease,  or  borrow  the  money  subject  to  the  usufruct  at  interest,  with  the 
concurrence  of  the  usufructuary. 

He  may  also,  if  the  usufructuary  agree  thereto,  rent  the  thing  subject 
to  the  usufruct,  and  lend  the  money  out  at  interest. 

He  may  also,  if  the  usufructuary  agree,  purchase  or  sell  the  fungible 
things,  and  borrow  or  lend  at  interest  the  proceeds. 

The  movables  comprised  in  the  usufruct,  which  should  be  necessary 
for  the  personal  use  of  the  usufructuary  or  his  family,  shall  be  delivered 
to  him  under  oath  of  returning  the  specific  things  or  their  respective 
values,  taking  into  consideration  natural  wear  and  tear. 


1*5 

The  usufructuary  may  at  any  time,  demand  the  administration,  upon 
furnishing  the  surety  required  of  him. 

Art.  837.  The  owner  shall  take  care  that  the  inventory  be  made  with 
the  proper  details,  and  cannot  later  plead  its  inexactness  or  incomplete- 
ness. 

476,477,478. 

Art.  838.  It  is  not  lawful  for  the  owner  to  do  anything  whatsoever  to 
prejudice  the  usufructuary  in  the  exercise  of  his  rights ;  unless  it  be  with 
the  formal  consent  of  the  usufructuary. 

If  he  shall  wish  to  make  necessary  repairs,  the  usufructuary  may  re- 
quire that  they  be  made  at  a  reasonable  time  and  with  the  least  possible 
prejudice  to  the  usufruct. 

If  he  transfer  or  convey  the  ownership,  it  shall  be  subject  to  the  usu- 
fruct established  thereon,  even  though  this  be  not  expressed. 

752,  1986. 

Art.  839.  If  there  be  two  or  more  usufructuaries,  the  right  of  accre- 
tion shall  exist  between  them,  and  the  entire  usufruct  shall  last  to  the 
expiration  of  the  right  of  the  last  of  the  usufructuaries. 

This  is  understood  if  the  constituent  should  not  have  provided  that 
upon  the  termination  of  a  partial  usufruct,  it  be  merged  with  the  owner- 
ship. 

1206,  1213,  1214,  1222,  809. 

Art.  840.  The  usufructuary  of  an  immovable  is  entitled  to  all  the 
natural  fruits,  including  those  hanging  at  the  time  the  usufruct  was  de- 
ferred. 

On  the  other  hand,  fruits  still  hanging  on  the  termination  of  the  usu- 
fruct, belong  to  the  owner. 

950,  715  to  717,  1828,  853,  2342. 

Art.  841.  The  usufructuary  of  an  estate  enjoys  all  the  active  servi- 
tudes established  in  its  favor,  and  is  subject  to  all  the  passive  servitudes 
established  thereon. 

Art.  842.  The  enjoyment  of  the  usufructuary  of  a  tenement  extends 
to  the  wooded  land,  but  with  the  obligation  of  preserving  it  as  a  whole, 
replacing  the  trees  he  may  fell,  and  answering  for  its  impairment,  in  so 
far  as  it  does  not  depend  upon  natural  causes  or  fortuitous  events. 

2038. 

Art.  843.  If  the  thing  subject  to  the  usufruct  comprise  mines  and 


i86 


quarries  being  actually  worked,  the  usufructuary  may  enjoy  the  proceeds 
thereof,  and  shall  not  be  responsible  for  the  consequent  diminution  of 
products,  provided  that  the  mine  or  quarry  is  not  rendered  useless  or 
impaired  through  his  fault. 

Art.  844.  The  usufruct  of  a  tenement  extends  to  the  increase  it  may 
receive  by  alluvion  or  by  other  natural  accessions. 

Art.  845.  The  usufructuary  does  not  have  over  the  treasure  found 
upon  the  land  which  he  holds  in  usufruct,  the  right  granted  by  law  to 
the  owner  of  the  soil. 

701,  1787. 

Art.  846.  The  usufructuary  of  a  movable  has  the  right  to  make  use 
thereof  according  to  its  nature  and  purpose ;  and  upon  the  termination 
of  the  usufruct  he  is  obliged  only  to  return  it  in  the  condition  it  may  then 
be,  being  responsible  only  for  such  losses  or  impairments  as  arise  from 
his  fraud  or  fault. 

Art.  847.  The  usufructuary  of  cattle  or  herds  is  obliged  to  replace  the 
animals  which  die  or  are  lost,  but  only  with  the  natural  increment  of  the 
cattle  or  herds,  unless  the  death  or  loss  may  be  charged  to  his  act  or 
fault,  as  in  such  case  he  must  compensate  the  owner. 

If  the  cattle  or  herd  should  die  in  whole  or  to  a  great  extent,  of  the 
effects  of  an  epidemic  or  other  fortuitous  event,  the  usufructuary  shall 
not  be  obliged  to  replace  the  animals  lost,  and  shall  comply  with  his  ob- 
ligation by  returning  the  rest  which  it  may  have  been  possible  to  save. 

64,  1604  par.  3. 

Art.  848.  If  the  usufruct  be  established  on  fungible  things,  the  usu- 
fructuary becomes  the  owner  thereof,  and  the  owner  becomes  merely  a 
creditor  for  the  delivery  of  other  species  of  the  same  quantity  and  quality 
or  of  the  value  which  they  may  have  at  the  time  of  the  termination  of  the 
usufruct. 

Art.  849.  The  civil  fruits  belong  to  the  usufructuary  day  by  day. 

717,950,  2342. 

Art.  850.  What  has  been  stated  in  the  preceding  articles  shall  be  un- 
derstood as  without  prejudice  to  the  agreements  which  may  be  made 
between  the  naked  owner  and  the  usufructuary,  or  the  advantages  which 
on  the  establishment  of  the  usufruct  may  have  expressly  been  granted 
the  naked  owner  or  the  usufructuary. 

Art.  851.  The  usufructuary  is  obliged  to  respect  the  leases  of  the 
thing  subject  to  the  usufruct,  which  the  owner  may  have  entered  into 
before  the  establishment  of  the  usufruct  by  an  act  inter  vivos,  or  of  the 
death  of  the  person  who  has  established  it  by  testament. 


i87 

But  he  succeeds  in  the  collection  of  the  rental  or  lease  price  from  the 
beginning  of  the  usufruct. 

752,  833. 

Art.  852.  The  usufructuary  may  give  the  usufruct  in  lease,  and  cede  it 
to  whomsoever  he  pleases,  under  an  onerous  or  gratuitous  title. 

The  usufruct  having  been  ceded  to  a  third  person,  the  transferrer  al- 
ways remains  directly  liable  to  the  owner. 

But  the  usufructuary  cannot  rent  nor  cede  his  usufruct,  if  the  constit- 
uent thereof  should  have  forbidden  it ;  unless  the  owner  relieve  him  of 
the  prohibition. 

A  usufructuary  violating  this  provision,  shall  lose  the  right  of  usufruct. 

1546. 

Art.  853.  Even  though  the  usufructuary  had  the  right  of  giving  the 
usufruct  in  lease  or  ceding  it  under  any  title,  all  the  contracts  which  he 
may  have  entered  into  for  this  purpose  shall  be  resolved  at  the  end  of  th  e 
usufruct. 

The  owner,  nevertheless,  shall  allow  the  lessee  or  transferee  the  time 
he  may  need  for  the  next  harvest  of  fruits;  and  during  such  time  he 
shall  substitute  the  usufructuary  in  the  contract. 

2016,  840,  819. 

Art.  854.  All  the  ordinary  expenses  of  preservation  and  cultivation 
shall  be  borne  by  the  usufructuary. 

Art.  855.  The  pensions,  annuities,  and,  in  general,  the  periodical 
charges  with  which  the  thing  subject  to  the  usufruct  may  have  been 
encumbered  previously,  falling  due  during  the  usufruct,  shall  be  paid 
by  the  usufructuary.  It  is  not  lawful  for  the  naked  owner  to  impose 
new  charges  thereon  to  the  prejudice  of  the  usufruct. 

The  usufructuary  shall  also  pay  the  periodical  fiscal  and  municipal 
taxes  thereon  during  the  usufruct,  at  whatever  time  they  may  have  been 
established. 

If,  by  reason  of  the  failure  of  the  usufructuary  to  make  these  payments 
the  owner  should  do  so,  or  if  the  thing  be  alienated  or  attached,  the  for- 
mer must  compensate  the  latter  for  all  damages. 

1427  par.  2,  1429,  1796  No.  4. 

Art.  856.  The  cost  of  extensive  works  or  repairs  (rej acetones) ,  neces- 
sary for  the  preservation  of  the  thing  subject  to  the  usufruct,  shall  be 
borne  by  the  owner,  the  usufructuary  paying  the  latter  during  the  term 
of  the  usufruct  the  legal  interest  on  the  moneys  expended  therein. 

The  usufructuary  shall  inform  the  owner  of  the  works  and  extensive 


i88 


repairs  which  are  necessary  for  the  preservation  of  the  thing  subject  to 
the  usufruct. 

If  the  owner  should  refuse  or  delay  in  making  these  works,  the  usu- 
fructuary may,  in  order  to  relieve  the  thing  subject  to  the  usufruct  and 
preserve  his  usufruct,  make  them  at  his  cost,  and  the  owner  shall  reim- 
burse him  therefor  without  interest. 

905,  1998. 

Art.  857  .  By  extensive  works  or  repairs  are  understood  those  which 
are  required  at  long  intervals  of  time,  and  which  concern  the  preserva- 
tion and  permanent  utility  of  the  thing  subject  to  the  usufruct. 

,   1998. 

Art.  858.  If  a  building  should  collapse  entirely  through  age  or  a  for- 
tuitous event,  neither  the  owner  nor  the  usufructuary  shall  be  obliged  to 
rebuild  it. 

Art.  859.  The  usufructuary  may  retain  the  thing  subject  to  the  usu- 
fruct until  the  owner  shall  make  the  reimbursements  and  pay  the  in- 
demnities incumbent  upon  him  according  to  the  preceding  articles. 

1995,  2417,970. 

Art.  860.  The  usufructuary  has  no  right  to  demand  anything  for  the 
improvements  he  may  have  voluntarily  made  in  the  thing  subject  to  the 
usufruct ;  but  it  shall  be  lawful  for  him  to  plead  them  to  offset  the  value 
of  the  deterioration  which  may  be  imputed  to  him,  or  take  away  the 
materials,  if  they  can  be  separated  without  injury  to  the  thing  subject  to 
the  usufruct,  and  the  owner  does  not  allow  him  what  they  would  be  worth 
after  separation. 

This  is  understood  without  prejudice  to  the  agreements  which  the  usu- 
fructuary and  the  owner  may  have  entered  into,  with  regard  to  improve- 
ments, or  to  the  stipulations  on  the  matter  made  at  the  time  of  the  es- 
tablishment of  the  usufruct. 

818,  965  ei  sea. 

Art.  861.  The  usufructuary  is  liable  not  only  for  his  own  acts  or 
omissions,  but  also  for  the  acts  of  others  to  which  his  negligence  may 
have  given  rise. 

Consequently,  he  is  responsible  for  the  servitudes  which  by  his  toler- 
ance may  have  been  acquired  on  the  tenement  subject  to  the  usufruct, 
and  for  the  damage  which  the  usurpations  committed  in  the  thing  sub- 
ject to  the  usufruct  may  have  inferred  upon  the  owner,  if  he  had  not  duly 
informed  the  owner  thereof,  when  it  was  in  his  power  so  to  do. 

1989,  2040. 


189 

Art.  862.  The  creditors  of  the  usufructuary  may  demand  that  the 
usufruct  be  attached,  and  that  they  be  paid  therewith  to  the  extent  of 
their  credits,  furnishing  the  proper  security  for  preservation  and  restitu- 
tion to  the  proper  person. 

They  may,  consequently,  oppose  any  cession  or  renunciation  of  the 
usufruct  made  with  intent  to  defraud  their  rights. 

1677  No.  8,  1295,  1451  par.  2. 

Art.  863.  A  usufruct  is  usually  extinguished  by  the  arrival  of  the 
day,  or  the  event  of  the  condition  prefixed  for  its  termination. 

If  the  usufruct  has  been  established  until  a  person  other  than  the 
usufructuary  attains  a  certain  age,  and  such  person  dies  before,  the  usu- 
fruct shall,  nevertheless,  continue  to  the  day  upon  which  said  person 
would  have  attained  such  age,  had  he  lived. 

Art.  864.  In  the  legal  term  of  the  usufruct  is  reckoned  even  the  time 
during  which  the  usufructuary  has  not  enjoyed  it,  through  ignorance  or 
usurpation,  or  any  other  cause. 

792,  827,  867. 

Art.  865.  A  usufruct  is  also  extinguished : 

By  the  natural  death  of  the  usufructuary,  even  though  it  occur  before 
the  day  or  condition  previously  fixed  for  its  termination. 

By  the  resolution  of  the  right  of  the  constituent,  as  when  it  has  been 
established  on  fiduciary  property,  and  the  time  for  restitution  arrives. 

By  merger  of  the  usufruct  with  the  ownership. 

By  prescription. 

By  the  renunciation  of  the  usufructuary. 

832  par.  2,  1 2 13,  94.     9  of  law  57  of  1887. 

Art.  866.  The  usufruct  is  extinguished  by  the  complete  destruction 
of  the  thing  subject  to  the  usufruct ;  if  only  a  part  is  destroyed,  the  usu- 
fruct subsists  in  the  remainder. 

If  the  entire  usufruct  be  confined  to  a  building,  it  shall  cease  forever 
by  the  total  destruction  thereof,  and  the  usufructuary  retains  no  right 
whatsoever  in  the  soil. 

But  if  the  building  destroyed  belongs  to  a  tenement,  the  usufructuary 
of  the  latter  shall  preserve  his  right  over  the  entire  tenement. 

822  No.  3,  652.      1 24  of  law  153  of  1887. 

Art.  867.  If  an  estate  subject  to  a  usufruct  is  flooded,  and  the  waters 
afterwards  withdraw,  the  usufruct  shall  revive  for  the  time  still  to  run 
before  its  termination. 

723,944,  864.     1 24  of  law  153  of  1887. 


190 

Art.  868.  Finally,  the  usufruct  terminates  by  the  decree  of  a  Judge 
who,  at  the  instance  of  the  owner,  declares  it  extinguished  by  reason  of 
the  usufructuary  failing  to  fulfill  his  obligations  in  a  grave  matter,  or 
by  reason  of  his  having  caused  considerable  damage  or  deterioration  to 
the  thing  the  subject  of  the  usufruct. 

The  Judge,  according  to  the  gravity  of  the  case,  may  order  either  that 
the  usufruct  cease  entirely,  or  that  the  thing  subject  to  the  usufruct 
revert  to  the  owner,  with  the  obligation  of  paying  the  usufructuary  a 
determined  annual  pension,  until  the  termination  of  the  usufruct 

758. 

Art.  869.  The  legal  usufruct  of  a  father  of  a  family  on  certain  prop- 
erty of  the  child,  and  that  of  the  husband,  as  administrator  of  the  con- 
jugal partnership,  in  the  property  of  the  wife,  are  subject  to  the  special 
rules  of  the  Title  Of  Paternal  Power,  and  the  Title  Of  Conjugal  Part- 
nership. 


i9i 


TITLE  X. 

Of  the  Rights  of  Use  and  of  Habitation. 

Art.  870.  The  right  of  use  is  a  real  right  which  consists,  generally,  in 
the  power  of  enjoying  a  limited  part  of  the  benefits  and  products  of 
a  thing. 

If  it  refer  to  a  house,  and  to  the  benefit  of  living  therein,  it  is  called 
the  right  of  habitation. 

665,  1677  No.  9,  2342,  2200. 

Art.  871.  The  rights  of  use  and  habitation  are  established  and  lost 
in  the  same  manner  as  a  usufruct. 

756,  829,  830,  831,  2200. 

Art.  872.  Neither  he  who  has  the  use  nor  he  who  enjoys  the  habita- 
tion shall  be  obliged  to  give  security. 

But  he  who  enjoys  the  habitation  is  obliged  to  make  an  inventory ; 
and  the  same  obligation  shall  extend  to  the  person  having  the  use,  if 
the  use  be  established  on  things  which  must  be  returned  in  kind. 

834,  835,  836,  837,  814,  820  par.  2. 

Art.  873.  The  extent  to  which  the  right  of  use  or  of  habitation  is 
granted,  is  determined  by  the  title  establishing  it,  and  in  the  absence  of 
such  determination  in  the  title,  it  shall  be  governed  by  the  foJ lowing 
articles. 

Art.  874.  The  use  and  habitation  are  limited  to  the  personal  neces- 
sities of  the  person  having  the  use  or  habitation. 

In  the  personal  necessities  of  the  person  having  the  right  of  use  or  of 
habitation  are  included  those  of  his  family. 

The  family  comprises  the  wife  and  the  children ;  both  those  existing  at 
the  time  of  the  establishment  and  those  born  later,  this  applying 
even  if  the  person  having  the  right  of  use  or  habitation  was  not  married 
nor  had  recognized  any  natural  child  at  the  date  of  the  establishment  of 
such  right. 

It  comprises,  furthermore,  the  number  of  servants  necessary  for  the 
family. 

It  comprises,  furthermore,  the  persons  who  at  that  date  may  be  living 
with  the  person  having  the  right  of  use  or  habitation,  and  at  his  expense ; 
and  the  persons  to  whom  he  owes  support. 


192 

Art.  875.  In  the  personal  necessities  of  the  person  having  the  use  or 
habitation  are  not  included  those  of  the  industry  or  commerce  in  which 
he  is  engaged. 

Thus,  a  person  having  the  use  of  animals,  cannot  employ  them  in  the 
hauling  of  the  goods  in  which  he  deals,  nor  can  the  person  enjoying  the 
right  of  habitation  use  the  house  for  shop  or  storage  purposes. 

Unless  the  thing  in  which  the  right  is  granted,  by  its  character  and 
ordinary  use  and  its  relation  to  the  profession  or  industry  of  him  who  is 
to  exercise  it  shall  appear  destined  to  serve  him  therein. 

Art.  876.  The  person  having  the  use  of  an  estate  has  only  a  right  to 
the  common  articles  of  support  and  fuel,  and  not  to  those  of  a  superior 
quality ;  and  he  is  obliged  to  take  them  with  the  owner's  permission  or 
to  receive  them  from  him. 

Art.  877.  He  who  has  the  use  and  he  who  has  the  right  of  habitation 
must  use  the  objects  comprised  in  their  respective  rights,  with  the  mod- 
eration and  care  of  a  good  father  of  a  family;  and  they  are  obliged  to 
contribute  to  the  ordinary  expenses  of  maintenance  and  cultivation,  in 
proportion  to  the  benefit  they  derive. 

The  latter  obligation  does  not  apply  to  the  use  or  habitation  given  in 
charity  to  needy  persons. 

63  pars.  3  and  4. 

Art.  878.  The  rights  of  use  and  habitation  cannot  be  transmitted  to 
the  heirs,  and  cannot  be  transferred  under  any  title,  nor  loaned  nor 
leased. 

Neither  the  person  having  the  use,  nor  he  who  has  the  habitation,  can 
rent,  loan,  or  alienate  any  object  to  which  the  exercise  of  his  right  extends. 

But  they  may  give  the  fruits  which  it  is  lawful  for  them  to  consume  in 
their  personal  necessities. 

1677  No.  9,  1974,  852,  819. 


193 


TITLE  XI. 

Of  Servitudes. 

Art.  879.  A  predial  servitude,  or  simply  a  servitude,  is  a  charge  imposed 
upon  an  estate  for  the  benefit  of  another  estate  belonging  to  a  different 
owner. 

Art.  880.  The  servient  tenement  is  that  which  suffers  the  charge,  and 
the  dominant  tenement  that  which  derives  the  benefit. 

With  regard  to  the  dominant  tenement,  the  servitude  is  called  active, 
and  with  respect  to  the  servient  tenement,  it  is  called  passive. 

665  par.  2. 

Art.  881.  A  continuous  servitude  is  that  which  is  or  can  be  exercised 
continuously,  without  the  necessity  of  an  actual  act  of  man,  as  a  servi- 
tude of  aqueduct  through  an  artificial  canal  belonging  to  the  dominant 
tenement;  and  an  intermittent  servitude,  that  which  is  exercised  at  in- 
tervals of  more  or  less  length  and  which  requires  an  actual  act  of  man, 
such  as  a  right  of  way. 

939- 

Art.  882.  A  positive  servitude  is,  in  general,  that  which  imposes  upon 
the  owner  of  the  servient  tenement  only  the  obligation  of  permitting 
something  to  be  done,  as  either  of  the  two  preceding  ones ;  and  negative, 
that  which  imposes  upon  the  owner  of  the  servient  tenement  the  prohi- 
bition of  doing  something,  which  it  would  be  legal  for  him  to  do  if  the 
servitude  did  not  exist,  such  as  not  being  permitted  to  raise  his  walls 
above  a  certain  height. 

Positive  servitudes  sometimes  impose  upon  the  owner  of  the  servient 
tenement  the  obligation  of  doing  something,  as  that  of  article  900. 

An  apparent  servitude  is  that  which  is  constantly  in  sight,  such  as  a 
right  of  way,  when  it  is  along  a  path  or  through  a  gate  specially  destined 
thereto ;  and  non-apparent  that  which  is  not  known  by  an  exterior  sign, 
such  as  a  right  of  way,  when  it  lacks  these  two  conditions  and  other 
similar  ones. 

939,  973- 

Art.  883.  Servitudes  are  inseparable  from  the  tenement  to  which 
they  actively  or  passively  belong. 

Art.  884.  If  a  servient  tenement  be  divided,  the  servitude  constituted 
thereon  does  not  vary,  and  must  be  suffered  by  the  person  or  persons  who 
receive  the  part  upon  which  it  was  exercised. 


194 

Thus,  the  new  owners  of  the  tenement  enjoying  a  right  of  way,  cannot 
require  that  the  direction,  form,  character  or  width  of  the  path  or  road 
destined  thereto  be  changed. 

Art.  885.  He  who  has  a  right  to  a  servitude,  has  likewise  a  right  to 
the  means  necessary  to  exercise  it.  Thus,  he  who  has  a  right  to  take 
water  from  a  spring,  situated  upon  the  neighboring  tenement,  has  a  right 
of  way  to  reach  it,  eve'n  though  such  right  of  way  may  not  have  been 
established  expressly  in  the  title. 

924,  986  pars.  2  and  3. 

Art.  886.  He  who  enjoys  a  servitude  may  construct  the  works  neces- 
sary to  exercise  it;  but  they  shall  be  at  his  cost  unless  otherwise  pro- 
vided ;  and  even  though  the  owner  of  the  servient  tenement  shall  have 
obligated  himself  to  construct  or  repair  them,  it  shall  be  lawful  for  him 
to  exonerate  himself  from  the  obligation  by  abandoning  the  part  of  the 
tenement  upon  which  the  works  are  to  be  constructed  or  maintained. 

Articles  cited  and  916.     113  par.  2  of  law  153  of  1887. 

Art.  887.  The  owner  of  the  servient  tenement  cannot  alter,  diminish 
nor  render  more  difficult  of  access  for  the  dominant  tenement,  the  servi- 
tude with  which  his  estate  is  charged. 

Nevertheless,  if  in  the  course  of  time  the  original  method  of  the  servi- 
tude should  become  more  onerous,  he  may  propose  that  it  be  changed 
at  his  own  cost;  and  if  the  changes  do  not  damage  or  prejudice  the 
dominant  tenement,  they  must  be  accepted. 

925- 

Art.  888.  Servitudes  are  either  natural,  when  they  arise  from  the 
natural  situation  of  the  places,  or  legal,  when  they  are  imposed  by  law, 
or  voluntary,  when  they  are  constituted  by  an  act  of  man. 

Art.  889.  The  provisions  of  this  title  shall  be  understood  without 
prejudice  to  the  prescriptions  regarding  servitudes  contained  in  the 
Police  Code  or  in  other  laws. 

Art.  890.  If  the  dominant  tenement  be  divided,  each  of  the  new 
owners  shall  enjoy  the  servitude,  but  without  increasing  the  charge 
upon  the  servient  tenement. 

Chapter  i. 

Of  Natural  Servitudes. 

See  arts.  32  and  33  of  law  153  of  1887. 

Art.  891.  The  inferior  tenement  is  obliged  to  receive  the  waters 
naturally  descending  from  the  superior  tenement,  that  is  to  say,  with- 
out the  work  of  man  contributing  to  their  descent. 


195 

Consequently,  a  drain  or  sewer  cannot  be  directed  over  the  neighbor- 
ing tenement,  unless  this  special  servitude  shall  have  been  established. 

Upon  the  servient  tenement,  nothing  can  be  done  to  disturb  a  natural 
servitude,  nor  the  dominant  tenement,  which  encumbers  it. 

936,  919,  887,  884  par.  2,  890. 

Art.  892.  The  owner  of  a  tenement  may  make  the  proper  use  of  the 
waters  naturally  running  through  the  same,  even  though  they  be  not  of 
his  private  ownership,  for  domestic  purposes,  for  the  irrigation  of  said 
tenement,  to  transmit  motion  to  his  mills,  or  other  machinery,  and  to 
water  his  animals. 

But  although  the  owner  may  make  use  of  such  waters,  he  is  obliged 
to  cause  the  surplus  to  return  to  the  usual  channel  thereof  at  the  outlet 
of  the  estate. 

Art.  893.  The  use  which  the  owner  of  a  tenement  may  make  of  the 
waters  running  through  it,  is  limited : 

1.  In  so  far  as  the  owner  of  the  inferior  tenement  may  have  acquired 
by  prescription  or  other  title,  the  right  of  making  use  of  the  same  waters ; 
the  prescription,  in  such  case,  shall  be  of  eight  years,  counted  as  for  the 
acquisition  of  ownership,  and  shall  run  from  the  time  that  apparent 
works  have  been  constructed  for  the  purpose  of  facilitating  or  directing 
the  descent  of  the  waters  upon  the  inferior  tenement. 

2.  In  so  far  as  it  is  in  contravention  of  the  laws  and  ordinances 
enacted  for  the  benefit  of  navigation  or  flotation,  or  which  regulate  the 
division  of  the  waters  between  the  riparian  owners. 

3.  When  the  waters  may  be  necessary  for  the  domestic  needs  of  the 
inhabitants  of  a  neighboring  town;  but  in  such  case  a  portion  thereof 
shall  be  left  to  the  tenement,  and  compensation  shall  be  made  for  all 
direct  damages. 

If  the  compensation  should  not  be  adjusted  by  common  agreement, 
the  town  may  request  the  expropriation  of  the  use  of  the  waters  to  the 
extent  necessary. 

Art.  894.  The  use  of  waters  running  between  two  tenements  is  vested 
in  common  in  the  two  riparian  estates,  with  the  same  limitations,  and 
shall  be  regulated,  in  the  event  of  dispute,  by  the  proper  authority,  the 
rights  acquired  by  prescription  or  otherwise  being  taken  into  considera- 
tion, as  in  the  case  of  the  preceding  article,  No.  1. 

677  par.  2. 

Art.  895.  Waters  running  in  an  artificial  channel,  built  at  the  expense 
of  another,  belong  exclusively  to  him  who  may  have  built  the  channel, 
with  the  lawful  requisites. 

Art.  896.  The  owner  of  an  estate  may  make  use,  as  he  wishes,  of  the 
rain  waters  running  along  a  public  highway  and  change  their  course  to 
make  use  thereof.     No  prescription  can  deprive  him  of  this  use. 


196 

Chapter  2. 
Of  Legal  Servitudes. 

Art.  897.  Legal  servitudes  are  those  relative  to  the  public  use,  or  to 
the  utility  of  private  individuals. 

Legal  servitudes,  relative  to  the  public  use,  are  the  following : 

The  use  of  banks  in  so  far  as  necessary  for  navigation  or  flotation. 

And  the  others  determined  by  the  respective  laws. 

Art.  898.  The  owners  of  the  banks  are  obliged  to  leave  free  the  space 
which  may  be  necessary  for  navigation  or  flotation  by  towing,  and  shall 
tolerate  that  the  navigators  ground  their  barges  and  boats,  secure  them 
to  trees,  careen  or  repair  them,  dry  their  sails,  purchase  the  goods  which 
they  freely  wish  to  sell  them,  and  sell  their  own  to  the  riparian  owners; 
but  they  cannot  establish  public  sales  without  the  permission  of  the 
respective  riparian  owner  and  of  the  local  authority. 

The  riparian  owner  cannot  fell  a  tree  to  which  a  vessel,  barge  or  boat 
is  actually  moored. 

691. 

Art.  899.  Legal  servitudes  of  the  second  class  are  also  determined  by 
the  laws  on  rural  police,  with  the  exception  of  what  is  herein  provided 
regarding  some  of  such  servitudes. 

Art.  900.  Every  owner  of  an  estate  has  the  right  to  have  the  limits 
fixed  which  separate  him  from  the  adjoining  estates,  and  may  require 
that  the  respective  owners  agree  thereto,,  the  demarcation  being  made  at 
the  common  expense. 

916,  1374,  812,  882  par.  2. 

Art.  901.  If  any  of  the  marks  which  indicate  the  boundaries  of  com- 
mon estates  shall  have  been  removed,  the  owner  of  the  prejudiced  estate 
has  the  right  to  demand  that  he  who  has  removed  it  replace  it  at  his 
own  cost,  and  compensate  him  for  the  damages  suffered  through  the  re- 
moval, without  prejudice  to  the  penalties  with  which  the  laws  punish 
the  crime. 

Art.  902.  The  owner  of  an  estate  has  the  right  to  enclose  or  fence  it 
on  all  sides,  without  prejudice  to  the  servitudes  constituted  in  favor  of 
other  tenements. 

The  enclosure  may  consist  of  walls,  ditches,  dead  or  live  hedges. 

Art.  903.  If  the  owner  effects  the  enclosure  of  the  estate  at  his  own 
cost  and  on  his  own  land,  he  may  construct  it  of  the  quality  and  dimen- 
sions he  desires.  And  the  adjoining  owner  cannot  make  use  of  the  wall, 
ditch,  or  hedge  for  any  purposev  unless  he  shall  have  acquired  this  right 


197 

by  a  title  or  by  prescription  of  eight  years  counted  as  for  the  acquisition 
of  ownership. 

Art.  904.  The  owner  of  a  tenement  may  force  the  owners  of  the  ad- 
joining tenements  to  contribute  to  the  construction  and  repair  of  com- 
mon dividing  fences. 

The  Judge,  in  a  necessary  case,  shall  regulate  the  manner  and  form  of 
the  contribution ;  so  that  no  ruinous  charge  be  imposed  upon  any  owner. 

The  dividing  fence,  constructed  at  the  common  expense,  shall  be  sub- 
ject to  the  servitude  of  party  wall. 

916. 

Art.  905.  If  a  tenement  is  removed  from  any  communication  with  the 
public  road,  by  the  interposition  of  other  tenements,  the  owner  of  the 
former  shall  have  the  right  to  impose  upon  the  others  a  right  of  way,  in 
so  far  as  indispensable  for  the  use  and  benefit  of  his  tenement,  paying  the 
value  of  the  land  necessary  for  the  servitude,  and  compensating  all  other 
damages. 

1394  No.  5. 

Art.  906.  If  the  parties  should  not  agree,  the  amount  of  the  indem- 
nity, as  well  as  the  exercise  of  the  servitude,  shall  be  fixed  by  experts. 

Art.  907.  If,  the  right  of  way  having  been  granted,  in  accordance  with 
the  preceding  articles,  it  should  later  become  possible  for  the  dominant 
tenement  to  dispense  therewith,  by  reason  of  the  acquisition  of  lands 
which  give  the  tenement  easy  access  to  the  road,  or  by  other  means, 
the  owner  of  the  servient  tenement  shall  have  the  right  to  demand  that 
he  be  relieved  of  the  servitude,  upon  returning  what  may  have  been 
paid  him  for  the  value  of  the  land  at  the  time  of  its  establishment. 

929. 

Art.  908.  If  a  portion  of  a  tenement  be  sold  or  exchanged,  or  if  it  be 
adjudicated  to  any  one  of  those  who  held  it  pro  indiviso,  anjd,  conse- 
quently, this  part  should  become  separated  from  the  road,  a  right  of  way 
shall  be  understood  as  granted  in  favor  of  the  same,  without  any  in- 
demnity whatsoever. 

66,  1 1 78,  1394  No.  3. 

Art.  909.  Party  division  (medianeria)  is  a  legal  servitude,  by  virtue 
of  which  the  owners  of  two  adjoining  tenements  which  have  common 
dividing  walls,  ditches  or  fences,  are  subject  to  the  mutual  obligations 
which  will  be  stated. 

Art.  910.  The  right  of  party  division  exists  for  each  one  of  the  two 
adjoining  proprietors,  when  it  shall  appear  either  by  an  apparent  mark 


198 

or  when  it  shall  be  evident  that  the  enclosure  was  made  concurrently  and 
at  the  common  expense. 

•  Art.  911.  Every  wall  of  separation  between  two  buildings  shall  be 
considered  a  party  wall,  but  only  in  so  far  as  it  shall  be  common  to  the 
buildings  themselves. 

Every  enclosure  between  yards,  gardens  and  fields  shall  be  considered 
a  party  division,  when  each  of  the  contiguous  areas  is  enclosed  on  all 
sides :  if  only  one  be  thus  enclosed,  it  shall  be  presumed  that  it  belongs 
to  it  exclusively. 

66. 

Art.  912.  In  all  cases,  and  even  when  it  shall  appear  that  a  party 
fence  or  wall  belongs  exclusively  to  one  of  the  adjoining  tenements,  the 
owner  of  the  other  tenement  shall  have  the  right  to  make  it  a  party  one 
in  whole  or  in  part,  even  without  the  consent  of  his  neighbor,  by  pay- 
ing him  one-half  the  value  of  the  land  upon  which  the  enclosure  is 
erected,  and  one-half  the  actual  value  of  the  portion  of  enclosure  which 
he  desires  to  be  a  party  one. 

Art.  913.  Either  of  the  two  co-owners  who  shall  desire  to  make  use 
of  a  party  wall  for  the  purpose  of  building  thereon,  or  to  make  it  support 
the  weight  of  a  new  construction,  must  first  secure  the  consent  of  his 
neighbor,  and  if  the  latter  should  refuse  it,  he  shall  apply  to  the  court 
for  the  appointment  of  experts  (provocard  un  juicio  prdctico)  to  secure 
the  order  of  the  measures  necessary  so  that  the  new  construction  shall 
not  damage  his  neighbor. 

Under  ordinary  circumstances,  it  shall  be  understood  that  either  of  the 
co-owners  of  a  party  wall  may  build  thereon,  inserting  beams  to  the 
distance  of  one  decimeter  from  the  opposite  surface ;  and  that  if  the  neigh- 
bor, on  his  side,  desires  to  insert  beams  in  the  same  place,  or  build  a 
chimney,  he  shall  have  the  right  to  cut  the  beams  of  his  neighbor  to 
the  middle  of  the  wall,  without  moving  them. 

Art.  914.  If  wells,  water  closets,  stables,  chimneys,  furnace  places, 
ovens,  or  other  works  are  in  question  which  may  damage  adjoining 
buildings  or  tenements,  the  rules  prescribed  by  the  police  laws  must  be 
observed,  whether  the  dividing  wall  be  a  party  one  or  not.  The  same 
applies  to  powder  deposits,  to  damp  or  infectious  substances,  and  to  all 
that  which  may  damage  the  solidity,  security  and  salubrity  of  buildings. 

998. 

Art.  915.  Either  of  the  co-owners  has  the  right  to  raise  the  party 
wall,  in  so  far  as  the  police  laws  permit,  conforming  to  the  following 
rules : 

1.  The  new  work  shall  be  constructed  wholly  at  his  cost. 


199 

2.  He  shall  pay  his  neighbor,  as  an  indemnity,  for  the  increased 
weight  he  is  going  to  place  on  the  party  wally  one  sixth  of  the  value  of 
the  new  work. 

3.  He  shall  pay  the  same  indemnity  every  time  that  the  party  wall 
is  rebuilt. 

4.  He  shall  be  obliged  to  heighten  at  his  own  cost  the  chimneys  of  his 
neighbor  located  in  the  party  wall. 

5.  If  the  party  wall  be  not  sufficiently  solid  to  support  the  increased 
weight,  he  shall  reconstruct  it  at  his  own  expense,  indemnifying  the 
neighbor  for  the  removal  and  replacing  of  everything  leaning  against  or 
attached  to  the  wall  on  the  latter' s  side. 

6.  If  it  should  become  necessary  to  increase  the  thickness  of  the  wall 
when  it  is  rebuilt,  the  land  necessary  for  such  thickening  shall  be  taken 
from  the  land  of  the  person  constructing  the  new  work. 

7.  The  neighbor  may,  at  any  time,  acquire  a  party  interest  in  the 
portion  newly  constructed,  upon  payment  of  one-half  the  total  cost 
thereof,  and  the  value  of  one-half  the  land  upon  which  the  party  wall 
may  have  been  extended,  according  to  the  preceding  paragraph. 

Art.  916.  The  cost  of  construction,  preservation  and  repair  of  the 
enclosure,  shall  be  borne  by  all  those  who  own  a  right  of  ownership 
therein,  in  proportion  to  their  respective  rights  . 

Nevertheless,  any  of  them  may  relieve  himself  from  this  charge  by 
abandoning  his  party  right,  but  only  when  the  division  does  not  consic* 
of  a  wall  which  supports  a  building  belonging  to  him. 

900,  886.     113  par.  2,  of  law  153  of  1887. 

Art.  917.  Trees  situated  in  a  party  fence,  are  also  party  trees;  the 
same  applies  to  trees,  the  trunk  of  which  is  situated  on  the  dividing  line 
of  two  estates,  even  though  there  be  no  intermediate  enclosure. 

Either  of  the  two  co-owners  may  demand  that  such  trees  be  felled,  if 
proof  be  adduced  that  they  are  somehow  injured  thereby ;  and  if  by  any 
accident  they  should  be  destroyed,  they  shall  not  be  replaced  without 
their  consent. 

Art.  918.  Water  rights  granted  by  a  competent  authority,  shall  b*» 
understood  as  without  prejudice  to  former  rights  therein  acquired. 

683,  1001. 

Art.  919.  Every  tenement  is  subject  to  the  servitude  of  aqueduct  in 
favor  of  another  tenement  which  lacks  the  waters  necessary  for  the 
cultivation  of  planted,  sown  or  pasture  land,  or  in  favor  of  a  town  which 
requires  the  same  for  the  domestic  service  of  its  inhabitants,  or  in  favor 
of  an  industrial  establishment  needing  them  for  the  operation  of  its 
machinery. 


200 

This  servitude  consists  in  the  conduction  of  the  waters  through  the 
servient  tenement,  at  the  expense  of  the  person  interested;  and  it  is 
subject  to  the  following  rules: 

891,  928,  986  pars.  2  and  3,  1001. 

Art.  920.  Houses,  and  the  yards,  courts,  gardens  and  orchards  appur- 
tenant thereto,  are  not  subject  to  the  servitude  of  aqueduct. 

Art.  921.  The  water  shall  be  carried  through  a  conduit  which  does 
not  permit  any  overflow,  or  the  water  to  stand  or  gather  dirt,  and  which 
shall  have  at  intervals  the  necessary  bridges  for  the  convenient  adminis- 
tration and  cultivation  of  the  servient  tenements. 

Art.  922.  The  right  of  aqueduct  comprises  that  of  laying  it  in  a  direc- 
tion so  as  to  permit  of  the  free  descent  of  the  water  and  which  from  the 
nature  of  the  soil  will  not  make  the  work  exceedingly  expensive. 

With  these  conditions  in  view,  the  aqueduct  shall  be  laid  along  the 
lines  which  shall  cause  the  least  damage  to  cultivated  lands. 

The  shortest  route  shall  be  considered  as  the  least  prejudicial  to  the 
servient  tenement,  and  the  least  expensive  to  the  person  interested,  if 
the  contrary  be  not  shown. 

The  Judge  shall  conciliate  the  interests  of  the  parties  in  so  far  as  pos- 
sible, and  in  doubtful  points  he  shall  decide  in  favor  of  the  servient 
tenements. 

Art.  923.  The  owner  of  the  servient  tenement  shall  be  entitled  to 
payment  for  the  value  of  all  the  land  occupied  by  the  aqueduct,  in  addi- 
tion to  that  of  a  strip  on  each  side  thereof  not  less  than  a  meter  wide 
along  the  entire  course,  which  strip  may  be  greater  by  agreement  between 
the  parties,  or  by  order  of  the  Judge,  when  circumstances  shall  so  require ; 
and  an  additional  ten  per  centum  on  the  entire  sum. 

He  shall  furthermore  be  entitled  to  indemnity  for  all  damage  caused 
by  the  construction  of  the  aduequct  and  by  its  nitrations  and  overflow 
which  can  be  imputed  to  defects  in  construction. 

Art.  924.  The  owner  of  the  servient  tenement  is  obliged  to  permit 
laborers  to  enter  thereon  for  the  purpose  of  cleaning  or  repairing  the 
aqueduct,  provided  that  notice  be  given  in  advance  to  the  manager  of 
the  tenement. 

He  is  also  obliged  to  permit  an  inspector  or  caretaker  to  enter,  with 
such  notice  in  advance ;  but  only  from  time  to  time,  or  as  often  as  the 
Judge,  in  the  event  of  disagreement  and  taking  the  circumstances  into 
consideration,  may  fix. 

885,  886,  986  pars.  2  and  3. 

Art.  925.  The  owner  of  the  aqueduct  may  prevent  any  planting  or 
new  work  in  the  lateral  space  referred  to  in  article  923. 

895. 


201 

Art.  926.  He  who  has  an  aqueduct  upon  his  own  tenement,  for  his 
own  benefit,  may  object  to  the  construction  of  another  thereon,  and 
offer  passage  through  his  own  for  the  waters  which  another  person  de- 
sires to  use ;  provided  that  this  does  not  entail  a  notable  damage  to  the 
person  desirous  of  opening  a  new  aqueduct. 

If  this  offer  be  accepted,  there  shall  be  paid  to  the  owner  of  the  ser- 
vient tenement,  the  value  of  the  ground  occupied  by  the  old  aqueduct 
(including  the  lateral  space  referred  to  in  article  923),  in  proportionate 
the  new  volume  of  water  introduced  therein,  and  he  shall  be  reimbursed, 
furthermore,  in  the  same  proportion  for  the  value  of  the  work  through- 
out the  length  used  by  the  person  interested. 

The  latter,  in  a  necessary  case,  shall  widen  the  aqueduct  at  his  own 
expense  and  shall  pay  for  the  new  land  occupied  by  him,  and  for  the 
lateral  space,  and  for  all  other  damage ;  but  without  the  surcharge  of  ten 
per  cent. 

Art.  927.  If  he  who  has  an  aqueduct  upon  the  estate  of  another  should 
desire  to  let  a  larger  volume  of  water  therein,  he  may  do  so,  upon  in- 
demnifying the  servient  tenement  for  all  damage.  And  if  new  works 
should  be  necessary  for  the  purpose,  the  provisions  of  article  923  shall  be 
observed  with  regard  thereto. 

Art.  928.  The  rules  established  for  the  servitude  of  aqueduct  extend 
to  those  constructed  to  permit  the  escape  and  for  the  direction  of  surplus 
water,  and  to  drain  marshes  and  natural  nitrations  by  means  of  ditches 
and  drainage  canals. 

Art.  929.  If  an  aqueduct  should  be  abandoned,  the  land  shall  return 
to  the  ownership  and  exclusive  use  of  the  owner  of  the  servient  tenement, 
who  shall  be  obliged  to  return  only  what  was  paid  him  for  the  value  of 
the  ground. 

907. 

Art.  930.  Whenever  waters  running  for  the  benefit  of  private  indi- 
viduals, shall  prevent  or  render  difficult  communication  with  neighbor- 
ing tenements,  or  shall  disturb  irrigation  or  drainage,  the  individual 
benefited  thereby  shall  be  obliged  to  build  the  bridges,  canals  and  other 
works  necessary  to  avoid  this  inconvenience. 

Art.  93 1 .  The  purpose  of  a  legal  servitude  of  light,  is  to  furnish  light 
to  any  space  whatsoever  which  is  enclosed  and  roofed ;  but  not  to  fur- 
nish a  view  upon  the  neighboring  tenement,  whether  enclosed  or  not. 

Art.  932.  No  window  or  opening  of  any  kind  can  be  placed  in  a  party 
wall,  without  the  consent  of  the  co-owner. 

The  owner  of  a  wall  that  is  not  a  party  wall,  may  place  any  number 
therein  of  the  dimensions  that  he  may  desire. 

If  the  wall  be  not  a  party  wall,  except  for  a  portion  of  its  height,  the 
owner  of  the  portion  which  is  not  common  enjoys  a  similar  right  therein. 


202 


The  proximity  of  the  wall  to  the  neighboring  tenement  is  not  an 
obstacle  to  the  exercise  of  the  servitude  of  light. 

Art.  933.  The  legal  servitude  of  light  is  subject  to  the  following  con- 
ditions : 

1.  The  window  shall  be  supplied  with  an  iron  grating,  and  a  wire 
screen,  with  a  mesh  of  three  centimeters  or  less. 

2.  The  lower  part  of  the  window  shall  be  at  least  three  meters  from 
the  floor  of  the  room  to  which  it  furnishes  light. 

Art.  934.  The  person  enjoying  the  servitude  of  light  shall  have  no 
right  to  prevent  the  erection  of  a  wall  upon  the  neighboring  soil  which 
deprives  him  of  the  light. 

If  the  dividing  wall  should  become  a  party  wall,  the  legal  servitude  of 
light  ceases,  and  a  voluntary  servitude  only  lies,  determined  by  the 
mutual  consent  of  both  owners. 

Art.  935.  No  windows,  balconies,  projections  or  terraces  looking  into 
the  rooms,  yards  or  courts  of  a  neighboring  tenement,  whether  enclosed 
or  not,  can  be  constructed ;  unless  there  be  an  intervening  distance  of 
three  meters. 

The  distance  shall  be  measured  between  the  vertical  plane  of  the 
greatest  projecting  line  of  the  window,  balcony,  etc.,  and  the  vertical 
plane  of  the  dividing  line  of  the  two  tenements,  if  both  planes  are 
parallel. 

If  the  two  planes  be  not  parallel,  the  same  measure  shall  be  applied 
to  the  shortest  distance  between  them. 

Art.  936.  There  is  no  legal  servitude  of  rain  water.  The  roofs  of  all 
buildings  must  shed  the  rain  waters  upon  the  tenement  to  which  they  be- 
long, or  upon  the  street  orpublic  road  or  highway,  and  not  upon  another 
tenement  unless  it  be  with  the  consent  of  the  owner. 

987  par.  3,  891. 

Chapter  3. 

Voluntary  Servitudes. 

See  article  32  of  law  153  of  1887. 

Art.  937.  Any  person  may  subject  his  tenement  to  the  servitudes  he 
may  desire,  and  acquire  them  over  neighboring  tenements,  with  the 
consent  of  their  owners,  provided  that  public  order  is  not  disturbed 
thereby  nor  the  laws  violated. 

Servitudes  of  this  kind  may  also  be  acquired  by  a  decree  of  a  Judge, 
in  the  cases  provided  for  by  law. 

Art.  938.  If  the  owner  of  a  tenement  establish  a  continuous  and 
apparent  service  in  favor  of  another  tenement  which  also  belongs  to 
him,  and  then  later  alienates  one  of  them,  or  they  become  the  property 


203 

of  different  owners  by  partition,  the  same  service  shall  subsist  as  a 
servitude  between  the  two  tenements,  unless  a  provision  shall  have  been 
embodied  in  the  deed  of  alienation  or  of  partition,  stipulating  otherwise. 

942  par.  5,  1 1 78. 

Art.  939.  Intermittent  servitudes  of  all  kinds,  and  continuous  non- 
apparent  servitudes  can  be  acquired  only  by  means  of  a  title ;  not  even 
the  immemorial  enjoyment  thereof  shall  be  sufficient  to  constitute  them. 

Continuous  and  apparent  servitudes  may  be  acquired  by  title,  or  by 
prescription  of  eight  years,  computed  as  for  the  acquisition  of  the  owner- 
ship of  estates.* 

88r,  882,  973,  2518  par.  2,  2520  par.  3,  2529. 

Art.  940.  The  title  constituting  a  servitude  may  be  supplied  by  the 
express  acknowledgment  of  the  owner  of  the  servient  tenement. 

The  former  destination,  according  to  article  938,  may  also  serve  as 
a  title. 

Art.  941.  The  title  or  the  possession  of  the  servitude  for  the  time 
fixed  in  article  939,  determines  the  rights  of  the  dominant  tenement  and 
the  obligations  of  the  servient  tenement. 


Chapter  4. 
Extinction  of  Servitudes. 

Art.  942.  Servitudes  are  extinguished : 

1.  By  the  resolution  of  the  right  of  him  who  established  them. 

2.  By  the  arrival  of  the  day  or  the  fulfillment  of  the  condition,  if  so 
established. 

3.  By  confusion,  that  is,  the  perfect  and  irrevocable  merger  of  both 
tenements  in  the  hands  of  the  same  owner. 

Thus,  when  the  owner  of  one  of  them  purchases  the  other,  the  servi- 
tude is  extinguished,  and  if  they  are  separated  by  a  sale,  it  Hoes  not 
revive;  excepting  in  the  case  of  article  938;  on  the  other  hand,  if  the 
conjugal  partnership  acquires  an  estate  which  owes  a  servitude  to 
another  estate  belonging  to  one  of  the  two  spouses,  there  shall  be  no 
confusion,  excepting  when,  the  society  having  been  dissolved,  both 
estates  are  adjudicated  to  one  and  the  same  person. 

4.  By  the  renunciation  of  the  owner  of  the  dominant  tenement. 

5.  By  non-user  for  twenty  years. 

*In  accordance  with  the  Code  of  Chile  and  art.  2529  of  this  Code,  the  time  for  the 
prescription  is  ten  years,  and  not  eight,  as  fixed  herein. 


204 

In  intermittent  servitudes  the  time  runs  from  the  period  the  non-user 
began;  in  continuous,  from  the  time  an  act  contrary  to  the  servitude 
shall  have  been  executed. 

2535,  2536,  2538. 

Art.  943.  If  the  dominant  tenement  belong  to  a  number  pro  indi- 
viso,  the  enjoyment  of  one  of  them  interrupts  the  prescription  with 
regard  to  all ;  and  if  the  prescription  cannot  run  against  one  of  them,  it 
can  run  against  none. 

1586,  2525,  2540. 

Art.  944.  If  the  servitude  cease  on  account  of  things  being  in  such 
condition  that  it  is  not  possible  to  use  the  same,  it  shall  revive  as  soon 
as  the  impediment  ceases  to  exist,  provided  that  this  occurs  before  the 
expiration  of  twenty  years. 

867. 

Art.  945.  A  particular  mode  of  exercising  a  servitude  may  be  ac- 
quired and  lost  by  prescription,  in  the  same  manner  as  the  servitude 
itself  could  be  acquired  or  lost. 


205 


TITLE  XII. 
Of  Revendication.* 

Art.  946.  Revendication  or  an  action  of  ownership  is  the  right  of  action 
which  the  owner  of  a  singular  thing,  of  which  he  is  not  in  possession, 
has  to  have  the  possessor  thereof  adjudged  to  return  it. 

762,  1931.     254  of  law  153  of  1887. 

Chapter  i. 

What  Things  can  be  Revendicated. 

Art.  947.  Corporeal  things,  real  property  and  movables  may  be 
revendicated. 

Herefrom  are  excepted  movables,  the  possessor  of  which  shall  have 
purchased  them  at  a  fair,  store,  shop  or  other  industrial  establishment 
in  which  movable  things  of  the  same  kind  are  sold. 

If  this  fact  be  established,  the  possessor  shall  not  be  obliged  to  restore 
the  thing,  if  he  be  not  reimbursed  what  he  may  have  given  therefor 
and  what  he  may  have  spent  in  its  repair  and  improvement. 

1633  par.  3,  2321,  1547. 

Art.  948.  Other  real  rights  may  be  revendicated  in  the  same  manner 
as  ownership,  excepting  a  right  of  inheritance. 

This  right  produces  the  action  of  petition  of  inheritance,  referred  to 
in  Book  3. 

665,  756,  1548. 

Art.  949.  A  determinate  quota  pro  indiviso  of  a  singular  thing  may  be 
revendicated. 

137* 

Chapter  2. 

Who  May  Revendicate. 

Art.  950.  A  rcvcndicatory  action  or  an  action  of  ownership  may  be 
brought  by  the  person  having  the  full  or  naked,  absolute  or  fiduciary 
ownership  of  the  thing. 

670,  3342,  2418,  878,  665,  1988,  2278. 
*  See  La.  Civil  Procedure,  sees.  52,  163,  362-363. 


206 

Art.  95  r.  The  same  right  of  action  is  granted,  although  ownership  be 
not  established,  to  him  who  has  lost  the  regular  possession  of  the  thing 
and  was  about  to  acquire  it  by  prescription. 

But  such  action  shall  not  avail  against  the  real  owner,  nor  against  him 
who  possesses  under  an  equal  or  better  right. 

Articles  cited  and  764. 

Chapter  3. 

Against  Whom  Actions  for  Revendication  May  Be  Brought. 

Art.  952.  An  action  of  ownership  is  brought  against  the  actual 
possessor. 

762,  1583. 

Art.  953.  The  mere  holder  of  the  thing  revendicated  is  obliged  to  de- 
clare the  name  and  residence  of  the  person  in  whose  name  he  holds  it. 

Art.  954.  If  any  one,  in  bad  faith,  claims  to  be  the  owner  of  the  thing 
which  is  revendicated  without  being  so,  he  shall  be  adjudged  to  pay  all 
damages  which  may  have  accrued  to  the  plaintiff  through  such  deception. 

768,  769. 

Art.  955.  The  action  of  ownership  shall  lie  against  the  person  who 
alienated  the  thing  for  the  restitution  of  what  he  may  have  received 
therefor,  provided  that  by  reason  of  the  alienation  the  recovery  thereof 
should  have  been  rendered  impossible  or  difficult ;  and  if  he  alienated  it 
knowing  that  it  belonged  to  another,  for  the  indemnity  of  all  damages. 

The  plaintiff  who  receives  from  the  conveyor  what  was  given  the 
latter  for  the  thing,  confirms  the  alienation  by  such  act. 

2320,   1874. 

Art.  956.  The  action  of  ownership  is  not  brought  against  an  heir,  ex- 
cepting for  the  part  which  he  may  possess  in  the  thing ;  but  the  prestations 
incumbent  upon  the  possessor  by  reason  of  the  fruits  or  deteriorations 
imputable  to  him,  pass  to  the  heirs  of  the  latter,  in  proportion  to  their 
hereditary  quotas. 

1580. 

Art.  957.  An  action  of  ownership  may  be  brought  against  a  person 
who  possessed  in  bad  faith  and  has  ceased  to  possess  by  his  act  or  fault 
as  if  he  were  actually  in  possession. 

In  whatever  manner  he  may  have  ceased  to  be  in  possession,  and  even 


207 

though  the  person  seeking  the  revendieation  should  prefer  to  proceed 
against  the  actual  possessor,  with  regard  to  the  time  the  thing  may  have 
been  in  his  possession,  he  shall  have  the  obligations  and  rights  which 
according  to  this  Title  pertain  to  possessors  in  bad  faith,  by  reason  of 
fruits,  deteriorations  and  expenses. 

If  he  shall  pay  the  value  of  the  thing,  and  the  person  seeking  the  re- 
vendieation accepts  it,  he  shall  succeed  to  the  rights  of  the  latter  therein. 

The  person  seeking  the  revendieation  in  the  cases  of  the  two  preced- 
ing paragraphs,  shall  not  be  obliged  to  warranty. 

768,  769,  983,  963  et  seq.,  1668,  1895,  1903,  2320  par.  2. 

Art.  958.  If  a  corporeal  movable,  being  revendicated,  there  should 
exist  reasons  to  fear  that  it  may  be  lost  or  deteriorate  in  the  hands  of  the 
possessor,  the  plaintiff  may  demand  its  sequestration ;  and  the  possessor 
shall  be  obliged  to  consent  thereto  or  give  sufficient  security  of  restitu- 
tion in  the  event  that  he  should  be  adjudged  to  make  restitution. 

2273  et  seq. 

Art.  959.  If  the  ownership  or  another  real  right  in  an  immovable  is  sued 
for,  the  possessor  shajl  continue  to  enjoy  the  same  until  a  final  decision 
shall  have  been  rendered,  which  has  become  a  res  judicata. 

But  the  plaintiff  shall  have  the  right  to  request  such  judicial  measures 
as  may  be  necessary  to  prevent  any  deterioration  of  the  thing,  and  of  the 
movables  and  live  stock  appurtenant  thereto  and  comprised  in  the  re- 
vendieation, if  there  should  be  reason  to  fear  it,  or  the  means  of  the 
defendant  do  not  offer  sufficient  guaranties. 

Art.  960.  An  action  for  revendieation  extends  to  the  attachment, 
in  the  hands  of  a  third  person,  of  what  the  latter  may  owe  as  the  price  or 
exchange  to  the  possessor  who  alienated  the  thing. 

1 52 1  No.  3,  1720. 


Chapter  4. 

Mutual  Prestations. 

Art.  961.  If  the  possessor  be  defeated,  he  shall  restore  the  thing 
within  the  period  fixed  by  law  or  by  the  Judge,  in  accordance  therewith ; 
and  if  the  thing  shall  have  been  sequestrated,  the  plaintiff  shall  pay  to 
the  sequestrator  the  cost  of  custody  and  preservation,  and  shall  be  en- 
titled to  reimbursement  thereof  by  the  possessor  in  bad  faith. 

1746,  1551  par.  2,  2258,  2259,  2277,  2218. 


208 

Art.  962.  In  the  restitution  of  an  estate  are  comprised  the  things 
which  form  a  part  thereof,  or  which  are  considered  as  immovable,  by 
reason  of  their  connection  therewith,  as  stated  in  the  Title  Of  Different 
Kinds  of  Property.  Other  things  shall  not  be  comprised  in  the  resti- 
tution, if  they  have  not  been  included  in  the  suit  and  judgment;  but 
they  may  be  revendicated  separately. 

In  the  restitution  of  a  building  that  of  the  keys  thereto  is  included. 

In  the  restitution  of  anything,  that  of  the  titles  concerning  it,  if  in  the 
hands  of  the  possessor,  is  included. 

Art.  963.  A  possessor  in  bad  faith  is  responsible  for  the  deteriora- 
tion which  the  thing  may  have  suffered  through  his  act  or  fault. 

A  bona  fide  possessor,  while  he  retains  the  possession,  is  not  liable  for 
deterioration,  except  in  so  far  as  he  shall  have  benefited  thereby ;  as, 
for  example,  by  destroying  a  forest  or  grove  of  trees  and  selling  the 
wood  or  lumber,  or  using  it  for  his  own  benefit. 

768,  769. 

Art.  964.  A  possessor  in  bad  faith  is  obliged  to  restore  the  natural 
and  civil  fruits  of  the  thing,  and  not  only  those  collected  but  also  such 
as  the  owner  would  have  been  able  to  secure  through  ordinary  intelli- 
gence and  activity,  had  he  had  the  thing  in  his  power. 

If  the  fruits  do  not  exist,  he  shall  owe  the  value  they  had  or  would 
have  had  at  the  time  of  the  collection :  such  as  have  deteriorated  in  his 
possession  shall  be  considered  as  not  existing. 

The  bona  fide  possessor  is  not  obliged  to  make  restitution  of  the  fruits 
collected  before  the  answer  to  the  suit :  with  regard  to  those  collected 
thereafter,  he  shall  be  subject  to  the  rules  prescribed  in  the  two  preced- 
ing paragraphs. 

In  every  case  of  restitution  of  fruits  the  person  making  it  shall  be 
allowed  the  ordinary  expenses  that  he  may  have  incurred  in  their  pro- 
duction. 

768,  769,  714  et  seq.,  417  par.  2,  966  pars.  1  and  4. 

Art.  965.  The  defeated  possessor  is  entitled  to  allowance  of  the  neces- 
sary expenses  incurred  in  the  preservation  of  the  thing,  according  to 
the  following  rules : 

If  this  expense  was  incurred  in  permanent  works,  such  as  a  fence  to 
prevent  depredations,  or  a  dam  to  prevent  floods,  or  in  repairs  to  a  build- 
ing damaged  by  an  earthquake,  the  possessor  shall  be  allowed  such 
expenses,  in  so  far  as  they  shall  have  been  really  necessarv;  but  they 
shall  be  reduced  to  the  value  of  the  works  at  the  time  of  restitution. 

And  if  the  expenditures  were  for  things  which  from  their  nature  do 
not  leave  a  permanent  material  result,  such  as  the  judicial  defense  of 


209 

the  estate,  they  shall  be  allowed  the  possessor  in  so  far  as  they  benefit 
the  person  seeking  the  revendication  and  shall  have  been  executed 
with  average  intelligence  and  economy. 

815  No.  1,  1802,  1993,  1994. 

Art.  966.  A  defeated  bona  fide  possessor,  is  also  entitled  to  an  allow- 
ance for  the  useful  improvements  made  before  the  answer  to  the  suit. 

By  useful  improvements  shall  be  understood  only  such  as  shall  have 
increased  the  market  value  of  the  thing. 

The  person  seeking  the  revendication,  shall  choose  between  the  pay- 
ment of  the  value  thereof  at  the  time  of  the  restitution  of  the  works  of 
which  the  improvements  consist,  or  the  payment  of  the  increased  value 
of  the  thing  at  said  time  due  to  the  said  improvements. 

With  regard  to  the  works  done  after  the  suit  was  answered,  the  bona 
fide  possessor  shall  have  the  rights  only  which  are  granted  in  the  last 
paragraph  of  this  article  to  a  possessor  in  bad  faith. 

The  possessor  in  bad  faith  shall  not  be  entitled  to  any  allowance  for 
the  useful  improvements  referred  to  in  this  article. 

But  he  may  take  with  him  the  materials  of  which  said  improvements 
consist,  provided  that  they  can  be  removed  without  damage  to  the 
thing  recovered,  and  that  the  owner  refuses -to  pay  him  the  price  which 
such  materials  would  be  worth  after  their  separation. 

1746  par.  2,  1994,  1993,  1802,  964  pars.  1,  3. 

Art.  967.  With  regard  tp  improvements  of  luxury  (mejoras  volup- 
tuarias)  the  owner  shall  not  be  obliged  to  reimburse  either  a  possessor  in 
good  or  bad  faith  therefor,  who  shall  have  with  respect  thereto  only  the 
right  granted  by  the  preceding  article  to  a  possessor  in  bad  faith,  with 
respect  to  useful  improvements. 

By  improvements  of  luxury  are  understood  those  which  consist  only 
in  objects  of  luxury  and  recreation,  such  as  gardens,  fountains,  artificial 
cascades,  and  generally  those  which  do  not  increase  the  market  value 
of  the  thing,  or  increase  it  in  an  insignificant  proportion  only. 

1994. 

Art.  968.  It  shall  be  understood  that  the  removal  of  the  materials 
permitted  by  the  preceding  articles,  is  detrimental  to  the  thing  reven- 
dicated,  when  it  would  be  left  thereby  in  a  condition  worse  than  before 
the  making  of  the  improvements;  excepting  in  so  far  as  the  defeated 
possessor  should  be  able  to  replace  it  immediately  in  its  former  condi- 
tion,'and  should  agree  thereto. 

Art.  969.  The  good  or  bad  faith  of  the  possessor  refers,  with  regard 


2IO 

to  the  fruits,  to  the  time  of  the  collection,  and  with  regard  to  the  ex- 
penses and  improvements,  to  the  time  they  were  made. 

768,  769. 

Art.  970.  When  there  shall  be  due  the  defeated  possessor  a  balance 
by  reason  of  expenses  and  improvements,  he  may  retain  the  thing  until 
the  payment  is  made,  or  security  to  his  satisfaction  is  given. 

859,  1995,  2417,  1746. 

Art.  971.  The  rules  of  this  Title  shall  apply  also  to  a  person  who, 
possessing  in  the  name  of  another,  improperly  retains  real  or  movable 
property,  even  though  he  do  so  without  intention  of  ownership. 

777,  1746,  1995,  2417. 


2TI 

TITLE  XIII. 
Of  Possessory  Actions. 

Art.  972.  The  object  of  possessory  actions  is  to  preserve  or  recover 
the  possession  of  real  property,  or  of  real  rights  constituted  therein. 

Art.  973.  No  possessory  action  can  be  brought  with  regard  to  things 
which  cannot  be  acquired  by  prescription,  such  as  non-apparent  or 
intermittent  servitudes. 

939- 

Art.  974.  A  possessory  action  can  be  brought  only  by  him  who  has 
been  in  quiet  uninterrupted  possession  for  a  full  year. 

762. 

Art.  975.  The  heir  has  and  is  subject  to  the  same  possessory  actions 
which  the  person  from  whom  he  inherited  would  have  or  be  subject  to, 
if  living. 

Art.  976.  Actions  whose  purpose  is  to  maintain  possession,  prescribe 
after  one  full  year,  counted  from  the  date  of  the  act  disturbing  or  inter- 
rupting the  same. 

Those  whose  purpose  is  to  recover  possession,  expire  at  the  end  of  one 
full  year,  counted  from  the  date  when  the  former  possessor  lost  it. 

If  the  new  possession  has  been  violent  or  clandestine,  this  year  shall 
be  computed  from  the  last  act  of  violence,  or  from  the  date  the  con- 
cealment ceased. 

The  rules  given  in  articles  778,  779,  and  780  regarding  the  continuation 
of  possession,  apply  to  possessory  actions. 

1007. 

Art.  977.  The  possessor  has  a  right  to  demand  that  his  possession  be 
not  disturbed  or  embarrassed  or  that  he  be  not  deprived  thereof,  that  he 
be  indemnified  for  the  damage  he  may  have  suffered,  and  that  he  be  given 
security  against  him  whom  he  has  reason  to  fear. 

Art.  978.  A  usufructuary,  a  user  and  one  who  has  the  right  of  habita- 
tion, are  capable  of  exercising  for  themselves  the  possessory  actions  and 
exceptions  the  purpose  of  which  is  to  preserve  or  recover  the  enjoyment 
of  their  respective  rights,  even  against  the  proprietor  himself.  The 
proprietor  is  obliged  to  assist  them  against  any  disturber  or  strange 
usurper,  when  called  upon  to  do  so. 


212 


Decisions  obtained  against  the  usufructuary,  the  user  or  the  person 
having  the  right  of  habitation,  are  binding  upon  the  proprietor ;  unless 
the  possession  of  the  ownership  of  the  estate  or  of  appurtenant  rights  is 
in  question  in  such  case  a  decision  shall  not  avail  against  a  proprietor 
who  has  not  been  a  party  in  the  proceedings. 

2342,  670,  950. 

Art.  979.  The  ownership  pleaded  by  either  party  shall  not  be  taken 
into  consideration  in  possessory  actions. 

Nevertheless,  titles  of  ownership  to  prove  the  possession  may  be  ex- 
hibited, but  only  those  the  existence  of  which  can  be  proved  in  a  sum- 
mary manner;  nor  can  any  vices  or  defects  thereagainst  be  pleaded, 
which  cannot  be  proved  in  the  same  manner. 

Art.  980.  The  possession  of  recorded  rights  is  proved  by  the  record, 
and  as  long  as  the  latter  subsists  and  provided  it  has  lasted  a  full  year, 
no  evidence  of  possession  in  rebuttal  thereof  can  be  admitted. 

785,  789,  66  pars.  3  and  4,  2526. 

Art.  98 1 .  The  possession  of  the  soil  must  be  proved  by  positive  acts, 
such  as  those  to  which  ownership  only  gives  a  right,  as  the  cutting  of 
timber,  the  construction  of  buildings,  of  enclosures,  of  plantings  or  sow- 
ings, and  others  of  like  significance,  executed  without  the  consent  of  him 
who  disputes  the  possession. 

Art.  982.  He  who  has  been  unjustly  deprived  of  possession,  shall  have 
the  right  to  demand  that  he  be  restored  therein  with  compensation  for 
damages. 

77i,  772,  773/774- 

Art.  983.  An  action  for  restitution  may  be  brought  not  only  against 
the  usurper,  but  against  any  person  whose  possession  is  derived  from, 
that  of  the  usurper  under  any  title. 

But  the  usurper  only,  or  the  third  person  acting  in  bad  faith,  shall  be 
obliged  to  make  compensation  for  damages,  and  if  there  be  several  per- 
sons bound,  they  shall  all  be  so  in  solidum. 

2343,  2344,  1568  par.  2,  957,  1 5 15  par.  2. 

Art.  984.  Any  person  who  has  been  violently  evicted,  either  from 
possession,  or  from  mere  tenancy,  and  who,  by  reason  of  holding  the 
possession  in  the  name  of  another,  or  not  having  possessed  for  a  suffi- 
cient time,  or  for  any  other  cause,  cannot  institute  a  possessory  action, 


213 

shall,  nevertheless,  have  the  right  to  the  re-establishment  of  the  things 
in  their  original  condition,  without  being  required  to  prove  for  this  pur- 
pose more  than  the  violent  eviction,  nor  can  concealment  or  former  evic- 
tion or  dispossession  be  pleaded.  This  right  prescribes  in  six  months. 
Things  having  been  restored  to  their  original  condition  and  compen- 
sation having  been  made  for  damages,  either  side  may  institute  the 
proper  possessory  actions. 

771  to  775,  and  the  citations  to  the  latter. 

Art.  985.  Acts  of  violence,  committed  with  or  without  arms,  shall 
furthermore  be  punished  with  the  penalties  which  the  respective  Code 
prescribes. 


214 

TITLE  XIV. 

Of  Some  Special  Possessory  Actions. 

Art.  986.  The  possessor  has  the  right  to  demand  an  injunction 
against  the  construction  of  any  new  work  upon  the  land  of  which  he 
is  in  possession. 

But  he  shall  not  have  the  right  to  denounce  with  this  end  in  view  the 
works  necessary  to  guard  against  the  collapse  of  a  building,  aqueduct, 
canal,  bridge,  sewer  or  drain,  etc.,  provided  that  they  be  confined  to 
what  is  absolutely  necessary  in  that  which  may  incommode  him,  and 
that,  upon  their  conclusion,  things  be  restored  to  their  previous  condi- 
tion at  the  cost  of  the  owner  of  the  works. 

Nor  shall  he  have  any  right  to  impede  the  works  necessary  to  main- 
tain the  proper  cleanliness  in  the  roads,  pipes,  drains,  etc. 

775  and  its  citations,  1007,  919,  885,  886,  924. 

Art.  987.  New  works  which  can  be  denounced  are  those  which,  being 
constructed  upon  a  servient  tenement,  impede  the  enjoyment  of  a  servi- 
tude established  thereon. 

Works  which  it  is  desired  to  support  on  another's  building,  not  subject 
to  such  servitude,  are  also  subject  to  denunciation. 

Any  projecting  work  which  crosses  the  vertical  plane  of  the  dividing 
line  of  the  tenements,  is  declared  specially  subject  to  denunciation,  even 
though  it  be  not  supported  upon  the  tenement  of  another,  nor  furnishes 
a  view  thereto,  nor  sheds  rain  water  thereon. 

9i5,  936. 

Art.  988.  He  who  shall  fear  that  the  collapse  of  a  neighboring  build- 
ing will  cause  him  damage,  shall  have  the  right  to  apply  to  the  Judge  for 
an  order,  to  the  owner  thereof  to  have  said  building  levelled,  if  its  con- 
dition were  such  as  not  to  admit  of  its  repair ;  or,  if  repairs  are  possible, 
that  they  be  made  at  once,  and  if  the  defendant  does  not  comply  with  the 
order  of  the  court,  the  building  shall  be  levelled  or  the  repairs  shall  be 
made  at  his  expense. 

If  the  damage  feared  from  the  building  should  not  be  grave,  it  shall 
be  sufficient  that  the  defendant  give  bond  to  make  good  any  damage 
which  may  be  caused  by  the  bad  condition  of  the  building. 

2355  par.  2,  2350. 

Art.  989.  If  the  repairs  referred  to  in  the  preceding  article  should  be 
made  by  a  person  other  than  the  defendant,  the  person  doing  so  shall 


215 

preserve  the  form  and  dimensions  of  the  old  building  in  all  its  parts, 
unless  it  should  be  necessary  to  change  them  in  order  to  guard  against 
the  danger. 

The  alterations  shall  be  made  at  the  will  of  the  owner  of  the  building, 
in  so  far  as  compatible  with  the  object  of  the  complaint. 

Art.  990.  If  notice  of  the  complaint  having  been  served,  the  building 
should  collapse  on  account  of  its  bad  condition,  the  neighbors  shall  be 
indemnified  for  all  damage  suffered ;  but  if  it  should  fall  by  reason  of  a 
fortuitous  event,  such  as  a  flood,  thunderbolt  or  earthquake,  an  indem- 
nity shall  not  lie ;  unless  it  be  proved  that  the  fortuitous  event  would 
not  have  caused  the  building  to  collapse,  had  it  not  been  in  such  a  bad 
condition. 

1608  No.  1,  1007,  2359. 

Art.  99 1 .  No  indemnity  shall  lie,  unless  notice  of  the  complaint  shall 
have  first  been  served. 

1608  No.  1. 

Art.  992.  The  preceding  provisions  shall  apply  to  the  danger  feared 
from  any  constructions;  or  from  trees  partly  uprooted  or  liable  to  fall 
in  the  event  of  an  ordinary  occurrence. 

Articles  cited. 

Art.  993.  If  enclosures,  walls  or  other  works  are  constructed  which 
turn  the  direction  of  running  waters,  so  that  they  run  upon  another's 
ground,  or  their  course  is  checked  and  they  become  stagnant,  rendering 
the  soil  damp,  or  deprive  tenements  entitled  to  the  enjoyment  of  said 
waters  from  the  benefit  thereof,  the  Judge,  on  the  petition  of  the  persons 
interested,  shall  order  that  said  works  be  removed  or  modified,  and  com- 
pensation made  for  damages. 

892,  925,  924. 

Art.  994.  The  provisions  of  the  preceding  article  apply  not  only  to 
new  works,  but  also  to  those  already  constructed,  provided  that  a  period 
of  time  sufficient  to  constitute  a  right  of  servitude,  shall  not  have 
elapsed. 

But  no  prescription  shall  be  admitted  against  works  which  befoul  the 
air  and  make  it  notoriously  injurious. 

1007. 

Art.  995.  He  who  constructs  works  to  prevent  the  entrance  of  waters 
which  he  is  not  obliged  to  receive,  is  not  liable  for  the  damage  that  the 


2l6 


waters  so  obstructed,  without  the  intention  of  causing  it,  may  occa- 
sion to  the  lands  or  buildings  of  others. 

Art.  996.  If  water  which  runs  through  an  estate  should  become 
stagnant  or  change  its  course  being  obstructed  by  the  mud,  the  stones, 
sticks  or  other  substances  which  it  carries  along  with  it  and  deposits, 
the  owners  of  the  estates  damaged  by  this  change  in  the  course  of  the 
water,  shall  have  a  right  to  force  the  owner  of  the  estate  where  the  ob- 
struction has  occurred,  to  remove  it,  or  permit  them  to  do  so,  so  that 
things  may  revert  to  their  original  condition. 

The  cost  of  the  cleaning  or  removal  of  the  obstruction  shall  be  shared 
by  the  owners  of  all  the  estates,  in  proportion  to  the  benefit  each  derives 
from  the  water. 

924,  925- 

Art.  997.  Whenever  some  of  the  waters  which  an  estate  uses,  through 
the  negligence  of  the  owner  to  give  them  an  outlet  without  damage  to 
his  neighbors,  drain  upon  another  estate,  the  owner  of  the  latter  shall  be 
entitled  to  recover  damages,  and  in  the  event  of  a  repetition  he  shall 
recover  double  the  amount  of  the  damages  suffered. 

Art.  998.  The  owner  of  a  house  has  the  right  to  impede  stagnant 
or  running  water  near  his  walls,  or  damp  substances,  which  might  injure 
him. 

He  also  has  the  right  to  prevent  the  planting  of  trees  at  a  distance 
of  less  than  fifteen  decimeters,  or  of  plants  or  flowers  at  a  distance  of  less 
than  five  decimeters. 

If  the  trees  be  of  a  species  the  roots  of  which  spread  to  great  distances, 
the  Judge  may  order  that  they  be  planted  at  such  a  distance  as  not  to 
injure  the  adjoining  buildings:  the  maximum  distance  fixed  by  the 
Judge  shall  be  five  meters. 

The  rights  granted  by  this  article  shall  subsist  against  the  trees,  flow- 
ers or  plants  planted,  unless  the  planting  shall  have  taken  place  prior  to 
the  construction  of  the  walls. 

914. 

Art.  999.  If  the  branches  of  a  tree  extend  over  the  ground  of  another, 
or  its  roots  penetrate  the  soil  of  another,  the  owner  of  the  soil  may 
require  that  the  projecting  portion  of  the  branches  be  cut  off,  and  he  him- 
self cut  the  roots. 

This  is  understood  even  though  the  tree  be  planted  at  the  proper  dis- 
tance. 

Art.  1 000.  The  fruits  that  the  branches  projecting  over  the  land  of 
another  bear,  belong  to  the  owner  of  the  tree,  who,  nevertheless,  cannot 
enter  to  gather  them  without  the  permission  of  the  owner  of  the  land,  if 
it  be  enclosed. 


217 

The  owner  of  the  land  shall  be  obliged  to  grant  this  permission ;  but 
only  on  such  days  and  at  such  hours  as  may  be  convenient  to  him. 

716. 

Art.  1 00 1.  He  who  shall  desire  to  construct  a  plant,  or  mill  or  any 
other  work  whatsoever,  using  waters  which  go  to  other  estates  or  to 
another  plant,  mill  or  manufacturing  establishment,  and  which  do  not 
run  through  an  artificial  channel  built  at  the  expense  of  another,  may 
use  them  upon  his  own  ground  or  upon  the  ground  of  another  withThe 
permission  of  the  owner  thereof;  provided  that  he  does  not  divert  or 
impair  the  waters  to  the  prejudice  of  those  who  have  already  built 
apparent  works  for  the  purpose  of  using  said  waters,  or  who  in  any  other 
manner  may  have  acquired  the  right  to  use  the  same. 

919,  918,  993. 

Art.  1002.  Any  person  may  dig  a  well  upon  his  own  ground,  even 
though  he  should  thereby  diminish  the  water  supply  of  another  well; 
but  if  he  does  not  derive  any  benefit  therefrom,  or  a  benefit  which  can- 
not be  compared  with  the  damage  to  another,  he  shall  be  obliged  to  fill  it. 

Art.  1003.  Whenever  it  shall  become  necessary  to  prohibit,  destroy 
or  amend  a  work  belonging  to  more  than  one  person,  the  complaint  or 
suit  may  be  brought  against  all  of  them  jointly  or  against  any  one  of 
them;  but  the  indemnity  which  may  lie  for  the  damages  incurred,  shall 
be  divided  among  all  pro  rata,  without  prejudice  to  the  persons  charged 
with  this  indemnity  dividing  it  among  themselves,  in  proportion  to  the 
part  each  may  have  in  the  work. 

And  if  the  damage  suffered  or  feared  should  belong  to  a  number,  each 
of  them  shall  have  the  right  to  make  complaint  or  bring  the  suit  by  him- 
self, in  so  far  as  the  prohibition,  destruction  or  amendment  of  the  work 
is  concerned ;  but  no  one  can  claim  indemnity  except  for  the  damage  he 
himself  may  have  suffered,  unless  he  shall  legally  establish  his  right  to 
represent  each  of  the  others  respectively. 

1581,  1583,  1590,  2325,  2350. 

Art.  1004.  The  actions  granted  by  this  Title,  shall  not  lie  against  the 
exercise  of  a  legally  constituted  servitude. 

Art.  1005.  The  municipality  and  any  resident  of  the  town  shall  have 
with  regard  to  the  roads,  squares  or  other  places  of  public  use,  and  for 
the  safety  of  those  travelling  thereover,  the  rights  granted  the  owners 
of  private  estates  or  buildings. 

And  whenever  as  a  consequence  of  a  popular  action  it  should  become 
necessary  to  demolish  or  change  a  work,  or  indemnify  a  damage  suffered, 
the  plaintiff  or  complainant  shall  receive,  at  the  cost  of  the  defendant,  a 


218 

sum  not  less  than  one-tenth  nor  more  than  one-third  of  the  cost  of  the 
demolition  or  change,  or  of  indemnity  for  damages;  without  prejudice 
to  the  award  of  one-half  of  any  pecuniary  penalty  which  may  be  im- 
posed for  the  offense  or  neglect,  being  awarded  to  the  plaintiff. 

2359,  236o. 

Art.  1006.  The  municipal  or  popular  actions  shall  be  understood  with- 
out prejudice  to  the  rights  of  action  of  the  persons  immediately  inter- 
ested. 

Art.  1O07.  The  rights  of  action  granted  in  this  Title  for  the  recovery 
of  damages  for  an  injury  sustained,  prescribe  forever  at  the  end  of  a  full 
year. 

.  Those,  the  purpose  of  which  is  to  guard  against  an  injury,  do  not  pre- 
scribe as  long  as  there  is  just  cause  to  fear  it. 

If  actions  to  prevent  the  construction  of  a  new  work  are  not  insti- 
tuted within  one  year,  the  defendants  or  persons  complained  against 
shaU  be  protected  in  the  possessory  action,  and  the  complainant  or  plain- 
tiff can  enforce  his  rights  through  the  ordinary  channels  only. 

But  not  even  the  last  named  action  shall  lie  when,  according  to  the 
rules  laid  down  for  servitudes,  the  right  shall  have  prescribed. 

976,  986. 


219 


BOOK   THIRD. 

OF  SUCCESSION   MORTIS  CAUSA  AND  DONATIONS 

INTER  VIVOS. 

TITLE  r. 

definitions  and  Oeneral  Rules. 

Art.  1008.  A  deceased  person  is  succeeded  under  a  universal  title  or 
under  a  singular  title.* 

The  title  is  universal  when  the  deceased  is  succeeded  in  all  his  trans- 
ferable property,  rights  and  obligations,  or  a  quota  thereof,  such  as  a 
half,  a  third  or  a  fifth. 

The  title  is  singular,  when  one  or  more  specific  substances  or  bodies 
are  inherited,  as  such  a  horse,  or  such  a  house;  or  one  or  more  undeter- 
minate  species  of  a  certain  kind,  as  one  horse,  three  cows,  six  hundred 
pesos,  forty  hectoliters  of  wheat. 

1157,  1201,  1124,  1155,  1162,  1199,  1200. 

Art.  1009.  If  one  succeeds  by  virtue  of  a  testament,  the  succession  is 
called  testamentary,  and  if  by  virtue  of  the  law,  intestate  or  abintestato. 

The  succession  to  the  property  of  a  deceased  person  may  be  partly 
testamentary  and  partly  intestate. 

1052. 

Art.  10 10.  Assignments  (asignaciones)^  mortis  causa,  are  those  made 
by  law  or  the  testament  of  a  deceased  person,  to  succeed  to  his  property. 

*  See  La.  Civil  Code,  arts.  1605  [1598]  to  1643  [1636]. 

f  For  the  purpose  of  accuracy,  the  terms  asignaciones  and  asignatarios  have  been 
translated  respectively  as  assignments  and  assigns.  While  an  assignment  is  not  tech- 
nically a  testamentary  transfer  (Black's  Law  Die.)  the  word  as  used  here  applies  to 
transfers  mortis  causa  only.  The  term  is  not  mentioned  in  Escriche,  Diccionario  de 
la  Legislacion  y  Jurisprudencia,  nor  in  Alcubilla,  Diccionario  de  la  Administracion 
espaflola,  while  the  Dictionary  of  the  Spanish  Academy  and  Zerolo's  work,  give  it 
practically  the  same  meaning  as  assignment  in  English.  Assigns  is  denned  in  the 
Louisiana  Civil  Code  (Art.  3556  [3522])  as  "those  to  whom  rights  are  transmitted  by 
particular  title;  such  as  sale,  donations,  legacy,  transfer  or  cession."  As  employed 
in  this  Code,  and  qualified  as  testamentary,  the  term  includes  also  those  succeeding 
under  a  universal  title. 

The  term  appears  to  have  been  used  in  Spanish  first  in  the  Chilean  Civil  Code,  as  it 
is  not  used  in  this  connection  in  any  of  the  Spanish  or  French  laws  to  which  the  trans- 
lator has  had  access. 


220 

By  the  word  assignments  in  this  Book  are  signified  assignments  mortis 
causa,  whether  made  by  man  or  by  the  law. 

The  assign  (asignatario)  is  the  person  to  whom  the  assignment  is  made. 

Art.  ioii,  Assignments  under  a  universal  title  are  called  inheri- 
tances, and  those  under  a  singular  title,  legacies.  The  assign  of  an  inheri- 
tance is  called  an  heir,  and  of  a  legacy  a  legatee. 

1155,  1162,  1201. 

Art.  1012.  The  succession  in  the  property  of  a  person  becomes  open 
at  the  moment  of  his  death  in  his  last  domicile,  reserving  cases  expressly 
excepted.    . 

The  succession  is  governed  by  the  law  of  the  domicile  in  which  it  is 
opened,  reserving  the  legal  exceptions. 

99,  1065,  20,  1086  par.  2,  1054,  I279-       34  to  37  of   law  153  of 

1887. 

Art.  10 1 3.  The  delation  of  an  assignment,  is  the  actual  calling  by  the 
law  to  accept  or  repudiate  it. 

The  inheritance  or  legacy  is  deferred  to  the  heir  or  legacy  at  the  mo- 
ment of  the  death  of  the  person  whose  succession  is  in  question,  if  the 
heir  or  legatee  is  not  called  conditionally;  or  at  the  moment  of  the  ful- 
fillment of  the  condition,  if  the  call  be  conditional. 

Unless  the  condition  be  to  not  do  something  depending  upon  the  sole 
will  of  the  assign;  as  in  such  case  the  assignment  is  deferred  at  the 
moment  of  the  death  of  the  testator,  the  assign  giving  sufficient  surety 
to  restore  the  thing  assigned  with  its  accessions  and  fruits,  in  the  event 
of  a  violation  of  the  condition. 

ThiSj  nevertheless,  shall  not  take  place  when  the  testator  shall  have 
disposed  that  during  the  pendency  of  the  condition  forbidding  the  doing 
of  something,  the  thing  assigned  belong  to  another  assign. 

757,  783,  1395,  1 128,  1542. 

Art.  10 14.  If  the  heir  or  legatee  whose  rights  to  the  succession  have 
not  prescribed,  should  die  before  having  accepted  or  repudiated  the 
inheritance  or  legacy  which  has  been  deferred  to  him,  he  transmits  to 
his  heirs  the  right  to  accept  such  inheritance  or  legacy  or  to  repudiate 
the  same,  even  though  he  should  die  without  knowing  that  it  had  been 
deferred  to  him. 

This  right  cannot  be  exercised  without  accepting  the  inheritance  of 
the  person  transmitting  it. 

1222,  1224  par.  2,  1472,  1285  par.  2,  1044. 


221 


Art.  1015.  If  two  or  more  persons,  called  to  succeed  one  another,  are 
comprised  in  the  provisions  of  article  95,  none  of  them  shall  succeed  to 
the  property  of  the  other. 

Art.  10 1 6.  In  every  succession  mortis  causa,  to  carry  into  effect  the 
dispositions  of  the  deceased  or  of  the  law,  the  following  shall  be  deducted 
from  the  estate  or  mass  left  by  the  deceased,  including  the  hereditary 
credits : 

1.  The  costs  of  the  publication  of  the  testament,  if  there  be  any,  and 
the  other  costs  connected  with  the  opening  of  the  succession. 

2.  The  hereditary  debts. 

3.  The  fiscal  taxes  charged  against  the  entire  hereditary  estate. 

4.  The  forced  assignments  for  support. 

5.  The  conjugal  portion  which  may  be  proper,  in  all  orders  of  succes- 
sion, excepting  in  that  of  the  legitimate  descendants.  The  remainder 
is  the  net  estate  disposable  by  the  testator  or  by  the  law. 

1281,  141 1,  2495  Nos.  2  and  6,  2496,  411,  1227,  1045,  1236. 

Art.  1017.  The  fiscal  charges  against  the  entire  estate,  extend  to  the 
revocable  donations  which  are  confirmed  by  the  death. 

The  fiscal  charges  upon  certain  quotas  or  legacies,  shall  be  charged 
to  the  respective  assigns. 

1176. 

Art.  10 1 8.  Every  person  whom  the  law  has  not  declared  incapable 
or  unworthy  thereof  is  capable  and  worthy  of  succeeding. 

Art.  10 1 9.  In  order  to  be  capable  of  succeeding,  it  is  necessary  to 
exist  naturally  at  the  time  of  the  opening  of  the  succession ;  unless  one 
succeeds  by  the  right  of  transmission,,  according  to  article  1014,  as  then 
it  will  be  sufficient  to  be  existing  at  the  time  of  the  opening  of  the  suc- 
cession of  the  person  by  whom  the  inheritance  or  legacy  is  transmitted. 

If  the  inheritance  or  legacy  be  left  under  a  suspensive  condition,  it 
shall  also  be  necessary  to  exist  at  the  moment  the  condition  is  fulfilled. 

Nevertheless,  assignments  to  persons  who  do  not  exist  at  the  time  of- 
the  opening  of  the  succession,  but  who  are  expected  to  exist,  shall  not  be 
invalidated  for  this  reason,  if  said  persons  should  exist  before  the 
expiration  of  thirty  years  subsequent  to  the  opening  of  the  succession. 

Assignments  offered  as  a  reward  to  those  rendering  an  important  ser- 
vice shall  be  valid,  with  the  same  limitation,  even  though  the  person  ren- 
dering such  service  did  not  exist  at  the  moment  of  the  death  of  the 
testator. 

93,  799,  821,  94,  1447,  1536,  1 136  par.  2,  800.     36,  30,  87,  No.  2 
of  law  153  of  1887. 


222 

Art.  i 020.  Confraternities,  guilds  or  establishments  of  any  kind  which ' 
are  not  juristic  persons,  are  incapable  of  receiving  any  inheritance  or 
legacy. 

But  if  the  purpose,  of  the  assignment  should  be  the  foundation  of  a 
new  corporation  or  establishment,  legal  approval  may  be  requested,  and, 
if  obtained,  the  assignment  shall  be  valid. 

1 1 19,  1448,  633,  634.  24  to  27  of  law  57  of  1887.  27,  80,  81,  of 
law  153  of  1887. 

Art.  102 i.*  Religious  communities,  corporations,  associations  and 
entities  are  incapable  of  receiving  any  inheritance  or  legacy,  even  though 
having  the  character  of  juristic  persons. 

Art.  1022.  The  priests  or  ministers  of  any  religion  or  cult  cannot  re- 
ceive by  testament,  under  the  title  of  an  inheritance  or  legacy,  not  even 
as  fiduciary  executors,  anything  but  that  which,  had  there  been  no  testa- 
ment, they  would  have  inherited  abintestate.  The  same  prohibition  ap- 
plies to  the  relatives,  by  consanguinity  or  affinity,  within  the  third  de- 
gree, of  the  priest  who  may  have  been  the  confessor  of  the  testator  dur- 
ing his  last  illness,  or  habitually  during  the  last  two  years. 

■ 

1 1 19,  1068,  No.  16.  84  of  law  153  of  1887.  The  last  paragraph 
of  said  article  84  states :  "Article  1022  of  the  Civil  Code  is  thus 
amended." 

. 

Art.  1023.  Any  disposition  in  favor  of  an  incapacitated  person  shall 
be  null,  even  though  disguised  under  the  form  of  an  onerous  contract,  or 
by  the  interposition  of  a  third  person. 

1120,  1191,  1029. 

Art.  1024.  An  incapacitated  person  does  not  acquire  the  inheritance 
or  legacy,  until  the  actions  which  could  be  brought  against  him  by  those 
who  might  have  an  interest  therein  prescribe. 

1032,  1326. 

Art.  1025.  The  following  are  unworthy  of  succeeding  the  deceased  . 
as  heirs  or  legatees : 

1 .  He  who  has  committed  the  crime  of  homicide  against  the  person  of 
the  deceased,  or  has  participated  in  this  crime  by  some  act  or  advice, 
or  let  the  person  die  when  able  to  save  him. 

2.  He  who  committed  a  serious  attempt  upon  the  life,  the  honor 
or  the  property  of  the  person  whose  succession  is  in  question,  or  of  his 

*  This  article  has  been  impliedly  repealed  by  article  27  of  law  57  of  1887,  and  the 
latter,  in  its  turn,  was  amended,  also  impliedly,  by  article  84  of  law  153  of  1887. 


223 

spouse  or  of  any  of  his  legitimate  ascendants  or  descendants,  provided 
that  said  attempt  be  established  by  means  of  a  final  sentence. 

3.  A  consanguineous  relative  within  the  sixth  degree  inclusive  who, 
when  the  person  whose  succession  is  in  question  was  demented  or  in  a 
state  of  destitution,  failed  to  assist  him  when  able  to  do  so. 

4.  He  who  through  force  or  fraud  obtained  some  testamentary  dispo- 
sition from  the  deceased,  or  prevented  him  from  making  a  will. 

5.  He  who  with  fraudulent  intent,  has  held  or  concealed  a  testament 
of  the  deceased ;  fraud  being  presumed  by  the  mere  act  of  the  detention 
or  concealment. 

1036,  1266,  1268  par.  2,  1049  No.  2,  66. 

Art.  1026.  A  male  of  legal  age,  who  shall  not  have  furnished  informa- 
tion to  the  judicial  authorities  of  the  homicide  committed  on  the  person 
of  the  deceased,  as  soon  as  it  was  possible  for  him  to  do  so,  is  unworthy 
of  succeeding  him. 

This  unworthiness  shall  cease,  if  the  judicial  authorities  shall  have 
begun  proceedings  in  the  case. 

But  this  cause  of  unworthiness  cannot  be  pleaded  unless  it  shall  ap- 
pear that  the  heir  or  legatee  is  not  married  to  the  person  by  whose  act  or 
advice  the  homicide  was  committed,  nor  is  of  his  ascendants  or  descend- 
ants, or  related  to  him  by  consanguinity  or  affinity  to  the  third  degree 
inclusive. 

Art.  1027.  An  ascendant  or  descendant  who,  being  called  to  suc- 
ceed abintestato,  a  person  who  has  not  reached  the  age  of  puberty,  an  in- 
sane person,  or  one  deaf  and  dumb,  had  not  requested  the  appointment 
or  a  tutor  or  curator  for  him,  and  had  been  guilty  of  this  omission  for  an 
entire  year,  is  unworthy  to  succeed  him;  unless  is  shall  appear  that  it 
was  impossible  for  him  to  do  so  either  in  person  or  through  an  attorney 
in  fact. 

If  there  should  be  several  called  to  a  succession,  the  diligence  of  one 
of  them  shall  benefit  the  remainder. 

Upon  the  expiration  of  the  year,  the  aforesaid  obligation  shall  fall  to 
those  called,  in  the  second  place,  to  the  intestate  succession. 

The  obligation  does  not  extend  to  minors,  nor  in  general  to  those  who 
live  under  tutorship  or  curatorship,  or  under  the  marital  power. 

This  cause  of  unworthiness  disappears  when  the  age  of  puberty  is 
attained,  or  the  insane  person  or  deaf-mute  assumes  the  administration 
of  his  property. 

172,546. 

Art.  1028.  A  tutor  or  curator  appointed  by  the  testator,  who  shall 
excuse  himself  without  legitimate  cause,  shall  be  unworthy  of  suc- 
ceeding him. 


224 

An  executor  appointed  by  the  testator  who  shall,  without  proving 
serious  inconvenience,  excuse  himself,  becomes  also  unworthy  to  succeed 
him. 

This  cause  of  unworthiness  shall  not  extend  to  forced  heirs  or  lega- 
tees with  regard  to  their  shares,  nor  to  those  whose  excuses  have  not  been 
accepted  by  the  Judge,  and  who  enter  upon  the  discharge  of  their 
duties. 

602  etseq.,  613,  1334,  1357,  1384,  1250. 

Art.  1029.  Finally,  he  who,  knowing  of  the  incapacity,  has  promised 
the  deceased  to  cause  his  property,  or  a  portion  thereof,  to  be  trans- 
ferred, under  any  form  whatsoever,  to  an  incapacitated  person,  is  un- 
worthy to  succeed  him. 

This  cause  of  unworthiness  cannot  be  pleaded  against  any  person  who, 
through  reverential  fear,  may  have  been  induced  to  make  the  promise 
to  the  deceased ;  unless  he  shall  have  proceeded  to  fulfill  the  promise. 

1023,  1371,  1357,  1386,  1513  par.  2. 

Art.  1030.  The  causes  of  unworthiness  mentioned  in  the  preceding 
articles  cannot  be  pleaded  against  testamentary  dispositions  subsequent 
to  the  acts  giving  rise  thereto,  even  though  proof  be  offered  that  the 
deceased  had  no  knowledge  of  these  acts  at  the  time  of  making  his 
testament  or  subsequently. 

Art.  103 1.  The  unworthiness  does  not  produce  any  effect  whatso- 
ever, if  it  be  not  declared  by  the  court,  at  the  instance  of  any  of  the 
persons  interested  in  the  exclusion  of  the  ,unworthy  heir  or  legatee. 

If  it  be  declared  judicially,  the  unworthy  person  is  obliged  to  make 
restitution  of  the  inheritance  or  legacy,  with  its  accessions  and  fruits. 

Art.  1032.  The  unworthiness  is  purged  after  ten  years'  possession  of 
the  inheritance  or  legacy. 

1024,  1326. 

Art.  1033.  The  action  of  unworthiness  does  not  pass  against  third 
persons  in  good  faith. 

Art.  1034.  The  inheritance  or  legacy  of  which  its  author  made  him- 
self unworthy  is  transmitted  to  the  heirs,  but  with  the  same  vice  of 
unworthiness  as  its  author,  for  all  the  time  still  necessary  to  complete 
the  ten  years. 

778,  2521,  1044  par.  2. 

Art.  1035.  The  hereditary  or  testamentary  debtors  cannot  oppose  an 
exception  of  incapacity  or  unworthiness  against  the  plaintiff. 


225 

Art.  1036.  The  incapacity  or  unworthiness  does  not  deprive  the  heir 
or  legatee  excluded  from  the  support  which  the  law  grants  him ;  but  in 
the  cases  of  article  1025,  he  shall  have  no  right  to  support. 

125  par.  2,  414  par.  3,  1268. 


TITLE  ir. 

Rules  Relating*  to  Intestate  Succession. 

Art.  1037.  The  laws  regulate  the  succession  in  the  property  of  which 
the  deceased  has  not  disposed,  or  if  he  did  dispose,  did  not  do  so  in  ac- 
cordance with  law,  or  his  dispositions  have  not  had  effect. 

1 122,  1 1 26  par.  2,  1 158.     34  to  37,  126  et  seq.  of  law  153  of  1887. 

Art.  1038.  The  law  does  not  consider  the  origin  of  the  property  to 
regulate  the  intestate  succession  or  charge  it  with  restitutions  or  reser- 
vations. 

Art.  1039.  Neither  sex  nor  primogeniture  is  considered  in  intestate 
succession. 

128  of  law  153  of  1887. 

Art.  1040.  The  following  are  called  to  the  intestate  succession;  the 
legitimate  descendants  of  the  deceased;  his  legitimate  ascendants;  his 
legitimate  collaterals;  his  natural  children;  his  natural  parents;  his 
natural  brothers  and  sisters;  the  surviving  spouse,  and  the  fisc* 

Art.  1 04 1.  An  intestate  succession  is  either  by  personal  right,  or  by 
right  of  representation. 

Representation  is  a  fiction  of  the  law  by  which  it  is  supposed  that  a 
person  has  the  place  and  consequently  bears  the  degree  of  relationship 
and  has  the  hereditary  rights  that  his  father  or  mother  would  have  if 
either  should  not  wish  or  not  be  able  to  succeed. 

A  father  or  mother  who,  had  they  been  able  to  or  wished  to  succeed, 
would  have  succeeded  by  the  right  of  representation,  may  be  repre- 
sented. 

1043,  io44-     36  of  law  !53  of  1887. 

*  This  article  has  been  amended  with  regard  to  the  tise,  by  article  85  of  law  153 
of  1887.     See  comment  to  art.  1 05 1. 


226 

Art.  1042.  Those  who  succeed  by  representation  inherit  in  all  cases 
per  stirpes,  that  is  to  say,  that  whatever  be  the  number  of  children  who 
represent  the  father  or  the  mother,  they  receive  in  equal  shares  the  por- 
tion that  would  have  fallen  to  the  father  or  mother  represented. 

Those  who  do  not  succeed  by  representation  succeed  per  capita,  that 
is,  they  take  among  them  in  equal  shares  the  portion  to  which  the  law 
calls  them,  unless  the  law  itself  shall  establish  a  different  division." 

Art.  1043.  Representation  always  takes  place  in  the  legitimate  de- 
scending line  of  the  deceased,  in  the  legitimate  descending  line  of  his 
legitimate  brothers  and  sisters  and  in  the  legitimate  descending  line  of 
his  natural  children  or  brothers  and  sisters. 

Excepting  in  these  posterities,  representation  does  not  take  place. 

1041. 

Art.  1044.  An  ascendant  whose  inheritance  has  been  repudiated, 
may  be  represented. 

1014,  1034,  1248. 

Art.  1045.  The  legitimate  children  exclude  all  the  other  heirs,  except- 
ing the  natural  children,  when  the  deceased  shall  have  left  both  legiti- 
mate and  natural  children;  the  inheritance  shall  be  divided  into  five 
parts,  four  for  the  legitimate  children  exclusively,  and  one  for  all  the 
natural  children.  The  latter  may  select  freely  between  the  inheritance 
or  the  support  to  which  they  may  be  entitled  under  the  law. 

The  provisions  of  this  article  shall  be  understood  as  without  prejudice 
to  the  conjugal  portion  due  the  surviving  spouse.* 

1016  No.  5,  1236. 

Art.  1046.  If  the  deceased  shall  not  have  left  legitimate  posterity,  he 
shall  be  succeeded  by  his  legitimate  ascendants  of  the  nearest  degree,  his 
spouse,  and  his  natural  children.  The  inheritance  shall  be  divided  into 
five  parts,  three  for  the  legitimate  ascendants,  one  for  the  spouse  and  the 
other  for  the  natural  children. 

Should  there  be  no  surviving  spouse  or  no  natural  children,  the  in- 
heritance shall  be  divided  into  four  parts;  three  for  the  legitimate 
ascendants  and  the  other  for  the  natural  children  or  for  the  spouse. 

Should  there  be  neither  spouse  nor  natural  children,  the  entire  in- 
heritance shall  belong  to  the  legitimate  ascendants. 

Should  there  be  only  one  ascendant  in  the  nearest  degree,  he  shall 


*  This  article  was  expressly  repealed  by  art.  45  of  law  57  of  1887,  and  replaced  by 
art.  28  of  the  same  law.  Notwithstanding  this  express  repeal  of  this  article,  law  153 
of  1887,  article  88,  again  repeals  article  1045,  and  also  28  of  law  57.  The  place  of  the 
two  articles  repealed  was  taken  by  art.  86  of  said  law  153. 


227 

succeed  to  all  of  the  property  or  to  the  entire  hereditary  portion  of  the 
ascendants. 

1043  par.  2,  1050  last  par. 

Art.  1047.  If  the  deceased  should  not  have  left  legitimate  descendants 
or  ascendants,  he  shall  be  succeeded  by  his  legitimate  brothers,  his  spouse, 
and  his  natural  children:  the  inheritance  shall  be  divided  into  three 
parts,  one  for  the  legitimate  brothers,  another  for  the  spouse  and  another 
for  the  natural  children. 

Should  there  be  no  spouse,  or  no  natural  children,  the  legitimate  broth- 
ers shall  succeed  to  one-half  the  property,  and  the  natural  children  or 
the  spouse  to  the  other  half. 

Should  there  be  no  natural  children,  nor  surviving  spouse,  the  brothers 
shall  receive  the  entire  inheritance. 

Among  the  legitimate  brothers  referred  to  in  this  article  shall  be  in- 
cluded even  those  who  are  such  only  on  the  father's  side  or  on  ihe  mother's 
side,  but  the  portion  of  the  paternal  or  maternal  brother  shall  be  one- 
half  the  portion  of  the  carnal  brother. 

Should  there  be  no  carnal  brothers,  the  legitimate  brothers,  paternal 
or  maternal,  shall  receive  the  entire  inheritance  or  the  entire  hereditary 
portion  of  the  brothers. 

1050  last  par. 

Art.  1048.  If  the  deceased  shall  not  have  left  descendants,  ascendants 
nor  legitimate  brothers,  the  surviving  spouse  shall  receive  one-half  the 
estate  and  the  natural  children  the  other  half. 

In  the  absence  of  the  latter,  the  spouse  shall  receive  all  the  property, 
and,  in  the  absence  of  the  spouse,  the  natural  children  shall  take  it. 

Art.  1049.*  In  the  absence  of  legitimate  descendants,  ascendants  and 
brothers,  of  a  surviving  spouse  and  natural  children,  the  other  legiti- 
mate collaterals  shall  succeed  the  deceased,  according  to  the  following 
rules : 

1 .  The  collateral  relative  or  relatives  of  the  nearest  degree  shall  always 
exclude  the  others. 

2.  The  rights  of  succession  of  the  collaterals  does  not  extend  beyond 
the  eighth  degree. 

3.  Collaterals  of  half-blood,  that  is,  those  who  are  relatives  of  the  de- 
ceased on  the  side  of  the  father  or  on  the  side  the  mother  only,  shall  en- 
joy the  same  rights  as  the  collaterals  of  the  whole  blood,  that  is  to  say, 
as  those  who  are  relatives  of  the  deceased  on  the  side  of  the  father  and 
on  the  side  of  the  mother. 

*  This  article  has  been  repealed  by  article  88  of  law  153  of  1887,  and  substituted 
by  article  87  of  said  law. 


228 


Art.  1050.  If  a  natural  child  shall  die  without  leaving  legitimate 
descendants,  his  inheritance  shall  be  deferred,  according  to  the  following 
order  and  rules : 

First,  to  the  natural  children. 

In  the  second  place,  to  the  parents.  If  one  of  them  only  should  have 
the  legal  quality  of  natural  father  or  mother,  the  inheritance  shall  be 
deferred  to  him  or  her  only. 

In  the  third  place,  to  such  of  the  brothers  as  may  be  legitimate  or 
natural  children  of  the  same  father,  of  the  same  mother,  or  of  both. 
All  of  them  shall  succeed  simultaneously;  but  the  carnal  brother  shall 
receive  double  the  portion  of  the  paternal  or  maternal  brother. 

The  quality  of  a  legitimate  child  shall  not  give  a  right  to  a  larger  por- 
tion than  that  of  him  who  is  only  a  natural  child  of  the  same  father  or 
mother. 

Should  there  be  a  surviving  spouse,  he  shall  participate  with  the  parent 
or  natural  brothers;  in  participation  with  the  former  or  one  of  them,  he 
shall  receive  one-quarter  of  the  property,  and  in  participation  with  one 
or  more  of  the  latter,  one-half. 

1046  par.  2,  1047  par.  2. 

Art.  105 i.*  In  the  absence  of  all  the  intestate  heirs,  designated  in  the 
preceding  articles,  the  fisc  shall  succeed. 

1040.     81  par.  1,  of  law  153  of  1887. 

Art.  1052.  When  one  and  the  same  patrimony  involve  both  a  testa- 
mentary and  an  intestate  succession,  the  testamentary  dispositions  shall 
be  executed,  and  the  residue  shall  be  awarded  to  the  intestate  heirs 
according  to  the  general  rules. 

But  those  who  succeed  both  by  testament  and  ab  intestato,  shall 
impute  to  the  portion  due  them  ab  intestato  that  which  they  may  receive 
under  the  testament,  without  prejudice  to  retaining  the  entire  testa- 
mentary portion,  if  it  exceeds  the  other. 

The  express  will  of  the  testator  shall  prevail  above  all  in  so  far  as 
legally  proper. 

1009  par.  2,  1249. 

Art.  1053.  Foreigners  are  called  to  intestate  successions  opened  in 
the  Territory,  in  the  same  manner  and  according  to  the  same  rules  as 
the  members  thereof. 

Art.  1054.  In  the  intestate  succession  of  a  foreigner  dying  within  or 
without  the  Territory,  the  members  thereof  shall  have,  under  the  title 

*  This  article  has  been  expressly  repealed  by  art.  45  of  law  57  of  1887;  neverthe- 
less, art.  85,  par.  2,  of  law  153  of  1887,  again  repeals  said  art.  105 1. 


229 

of  an  inheritance,  a  conjugal  portion  or  support,  the  same  rights  that 
according  to  the  laws  in  force  in  the  Territory  they  would  have  in  the 
intestate  succession  of  a  member  of  the  Territory. 

The  members  of  the  Territory  interested  may  request  that  they  be 
awarded  from  the  property  of  the  foreigner  existing  in  the  Territory,  all 
that  is  due  them  in  the  succession  of  the  foreigner. 

This  shall  also  be  applied,  in  a  necessary  case,  to  the  succession  of  a 

member  of  the  Territory  who  may  leave  property  in  a  foreign  countrv. 

#  ~ 

IOI2,    19  No.    2. 


TITLE  III. 

Of  the  Form  of  Testaments. 

Chapter  i. 

Of  the  Testament  in  General. 

Art.  1055.  A  testament  is  a  more  or  less  solemn  act,  by  which  a  person 
disposes  of  all  or  of  a  part  of  his  property  in  order  that  it  shall  have  full 
effect  after  his  death,  retaining  the  power  to  revoke  the  dispositions 
contained  therein  during  his  lifetime. 

1059,  1010. 

Art.  1056.  Every  donation  or  promise  that  does  not  become  perfect 
and  irrevocable  except  by  the  death  of  the  donor  or  promissor,  is  a 
testament,  and  must  conform  to  the  same  formalities  as  are  required  in 
testaments.  Donations  and  promises  between  husband  and  wife  are 
excepted;  these,  although  subject  to  revocation,  may  be  made  under 
the  form  of  contracts  inter  vivos. 

1057,  1 194.  IJ96,  1 195. 

Art.  1057.  All  testamentary  dispositions  are  essentially  subject  to 
revocation,  even  though  the  testator  shall  express  in  his  testament  the 
determination  not  to  revoke  them.  Clauses  repealing  his  future  dispo- 
sitions shall  be  considered  as  not  written,  even  though  they  be  confirmed 
by  oath. 


230 

If  in  a  former  testament  an  order  shall  have  been  made  that  its  revo- 
cation should  not  be  valid  unless  made  with  certain  words  or  marks, 
this  disposition  shall  be  considered  as  not  written. 

1 194,  1 195. 

Art.  1058.  The  certificates  (cedulas)  or  papers  to  which  the  testator 
may  make  reference  in  the  testament,  shall  not  be  considered  as  parts  of 
the  latter,  even  though  the  testator  should  so  order ;  nor  shall  they  have 
more  value  than  what  they  would  be  worth  without  this  circumstance. 

1368,  1369. 

Art.  1059.  A  testament  is  an  act  of  a  single  person. 

All  dispositions  contained  in  a  testament  executed  by  two  or  more 
persons  at  one  time,  whether  for  the  mutual  benefit  of  the  parties 
thereto,  or  for  the  benefit  of  a  third  person,  shall  be  void. 

Art.  1060.  The  power  to  testate  cannot  be  delegated. 

Art.  106 1.  The  following  are  not  able  to  testate: 

1 .  A  person  who  has  not  attained  the  age  of  puberty. 

2.  He  who  is  under  interdiction  on  account  of  insanity. 

3.  He  who  is  not  at  the  time  in  his  sound  mind  on  account  of  intoxica- 
tion or  other  cause. 

4.  He  who  cannot  verbally  or  in  writing  express  his  will  clearly. 
The  persons  not  included  in  this  enumeration  are  able  to  testate. 

1118. 

Art.  1062.  A  testament  executed  during  the  existence  of  any  of  the 
causes  of  disqualification  mentioned  in  the  preceding  article  is  null  and 
void,  even  though  subsequently  the  cause  shall  cease  to  exist. 

And,  on  the  other  hand,  a  valid  testament  does  not  cease  being  so  by 
reason  of  any  of  these  causes  of  disqualification  arising  later. 

Art.  1063.  A  testament  in  which  force  shall  have  been  employed  in 
any  manner  whatsoever,  is  null  and  void  in  all  its  parts. 

1508,  1513. 

Art.  1 064.  A  testament  is  solemn  and  less  solemn  (menos  solemne) .  A 
solemn  testament  is  that  in  which  all  the  formalities  ordinarily  required 
by  the  law  have  been  observed.  A  less  solemn  or  privileged  testament 
is  that  in  which  some  of  these  formalities  may  be  omitted,  by  reason 
of  special  conditions,  expressly  determined  by  the  law. 

A  solemn  testament  is  either  opened  or  sealed. 

An  open,  nuncupative  or  public  testament  is  that  in  which  the  testator 
communicates  its  dispositions  to  the  witnesses,  and  to  the  notary,  if  one 
has  been  present ;  and  a  sealed  or  secret  testament  is  that  in  which  it  is 


231 

not  necessary  that  the  witnesses  and  the  notary  have  any  knowledge 
of  such  dispositions. 

See  the  three  chapters  following.     34  of  law  153  of  1887. 

Art.  1065.  The  opening  and  publication  of  a  testament  shall  take 
place  before  the  Judge  of  the  last  domicile  of  the  testator;  but  if  the 
notary  and  the  witnesses  thereto  who  must  acknowledge  their  signa- 
tures should  not  be  there,  the  acts  shall  take  place  before  the  Judge 
designated  by  the  laws  of  procedure. 
1012,  1085,  1086,  1082. 


Art.  1066.  Whenever  it  shall  become  necessary  for  a  Judge  to  pro- 
ceed to  the  opening  and  publication  of  a  testament,  he  shall  assure 
himself  first  or  the  death  of  the  testator.  Cases  in  which,  according  to 
the  law,  death  is  to  be  presumed,  are  excepted. 

97,  99,  1082. 

Chapter  2. 

Of  the  Solemn  Testament  and  Especially  of  that  Executed  in  the  Territories. 

Art.  1067.  A  solemn  testament  is  always  in  writing.   • 

1087. 

Art.  1068.  The  following  cannot  be  witnesses  to  a  solemn  testament 
executed  in  the  Territories  : 

1.  Women. 

2.  Persons  under  eighteen  years  of  age. 

3.  Those  who  are  under  interdiction  by  reason  of  insanity. 

4.  All  those  at  the  time  deprived  of  their  reason. 

5.  The  blind. 

6.  The  deaf. 

7.  The  dumb. 

8.  Those  sentenced  to  any  of  the  penalties  designated  in  article  315, 
subdivision  4,  and,  in  general,  those  who  shall  be  disqualified  to  be  wit- 
nesses by  a  final  decision. 

9.  The  clerks  of  the  Notary  who  authenticates  the  testament. 

10.  Foreigners  not  domiciled  in  the  Territory. 

1 1 .  Persons  who  do  not  understand  the  language  of  the  testator,  with- 
out prejudice  to  the  provisions  of  article  108 1. 

12.  The  ascendants,  descendants  and  relatives  within  the  third  de- 
gree of  consanguinity,  or  second  of  affinity  of  the  testator  or  of  the 
public  official  who  authorizes  the  testament. 


232 

13.  The  husband  of  the  testatrix. 

14.  The  employees  or  domestics  of  the  testator,  of  his  spouse,  of  the 
official  who  authorizes  the  testament,  and  of  the  other  persons  comprised 
in  numbers  12  and  17. 

15.  Those  who  are  related  or  connected  to  another  of  the  witnesses  in 
the  degrees  and  character  referred  to  in  numbers  12  and  14. 

16.  The  priest  who  may  have  been  the  habitual  confessor  of  the  testa- 
tor, and  he  who  shall  have  received  his  confession  during  his  last  illness. 

17.  The  heirs  and  the  legatees,  and,  in  general,  all  those  who  may 
be  directly  benefited  by  the  testament. 

At  least  two  of  the  witnesses  must  be  domiciled  in  the  place  where  the 
testament  is  executed,  and  one,  at  least,  must  be  able  to  read  and  write, 
when  there  are  three  witnesses  only,  and  two  when  there  are  five  present. 

127,  2587. 

Art.  1069.  If  any  of  the  causes  of  disqualification,  mentioned  in  the 
preceding  article,  should  not  be  apparent  from  the  appearance  or  con- 
duct of  a  witness,  and  it  should  be  generally  unknown  in  the  place  where 
the  testament  is  executed,  a  contrary  opinion  being  based  upon  positive 
and  public  acts,  the  testament  shall  not  be  invalidated  by  the  real  in- 
competency of  the  witness. 

But  the  putative  competency  can  serve  but  one  of  the  witnesses. 

Art.  1070.  A  solemn  and  open  testament  must  be  executed  before  the 
respective  notary  or  his  substitute,  and  three  witnesses. 

All  that  may  be  stated  in  this  Code  regarding  the  Notary,  shall  apply 
also  to*his  substitute  in  service,  in  a  proper  case. 

2550,  2551,  1071. 

Art.  107 1.  In  places  where  there  is  no  Notary  or  where  this  official  is 
absent,  the  nuncupative  solemn  testament  may  be  executed  before  five 
witnesses  having  the  qualifications  required  by  this  Code. 

Art.  1072.  That  which  essentially  constitutes  an  open  testament,  is 
the  act  by  which  the  testator  informs  the  Notary,  if  there  be  any,  and 
the  witnesses,  of  his  dispositions. 

The  testament  shall  be  executed  in  all  its  parts  before  the  testator, 
the  same  notary,  if  there  be  one,  and  the  same  witnesses. 

Art.  1073.  The  testament  shall  contain  a  statement  of  the  name  and 
surname  of  the  testator;  his  place  of  birth,  the  nation  to  which  he 
belongs;  whether  he  has  a  residence  in  the  Territory  or  not,  and,  if  he 
has,  the  place  of  his  domicile ;  his  age ;  the  fact  that  he  is  of  sound  mind ; 
the  names  of  the  persons  with  whom  he  may  have  contracted  marriage, 
of  the  children  had  or  legitimized  during  each  marriage,  and  of  the 
natural  children  of  the  testator,  stating  whether  they  are  alive  or  dead ; 
and  the  name,  surname  and  domicile  of  each  of  the  witnesses. 


233 

These  statements  shall  conform  to  what  the  testator  and  the  witnesses 
may  respectively  declare.  There  shall  be  stated  furthermore,  the  place, 
day,  month  and  year  of  the  execution,  and  the  name  and  surname  of  the 
Notary,  if  one  attends. 

1083  par.  2. 

Art.  1074.  An  open  testament  may  have  been  written  in  advance. 

But  whether  the  testator  has  it  already  written,  or  whether  it  be 
written  at  one  or  more  acts,  it  shall  be  read  in  full  aloud  by  the  Notary, 
if  there  be  any,  or,  in  the  absence  of  a  Notary,  by  one  of  the  witnesses 
designated  by  the  testator  for  this  purpose. 

During  the  reading  of  the  testament,  the  testator  shall  be  present,  and 
the  persons  whose  presence  is  necessary  shall  hear  the  tenor  of  his  dis- 
positions. 

Art.  1075.  The  act  shall  be  closed  by  the  signatures  of  the  testator 
and  the  witnesses,  and  by  that  of  the  Notary,  if  there  be  one. 

If  the  testator  should  not  know  how  or  be  unable  to  sign,  this  fact 
shall  be  mentioned  in  the  testament,  the  cause  being  stated. 

If  any  of  the  witnesses  should  suffer  from  the  same  inability,  one  of 
the  other  witnesses  shall  sign  for  him,  at  his  request,  mention  being  made 
of  this  fact. 

1080  par.  5. 

Art.  1076.  A  blind  person  can  testate  nuncupatively  only  and  before 
a  Notary  or  official  acting  as  such.  His  testament  shall  be  read  aloud 
twice;  the  first  time  by  the  Notary  or  official,  and  the  second  time  by 
one  of  the  witnesses,  selected  for  the  purpose  by  the  testator.  Special 
mention  of  this  formality  shall  be  made  in  the  testament. 

Art.  1077.  If  the  testament  shall  not  have  been  executed  before  a 
notary,  but  before  five  witnesses,  its  publication  shall  be  necessary,  in 
the  following  form : 

The  Judge  of  competent  jurisdiction  shall  cause  to  appear  before  him 
the  witnesses  to  acknowledge  their  signatures  and  that  of  the  testator. 

If  one  or  more  of  them  should  fail  to  appear  on  account  of  absence  or 
for  any  other  reason,  it  shall  be  sufficient  that  the  attesting  witnesses 
present  identify  the  signature  of  the  testator,  their  own  signatures  and 
those  of  the  absent  witnesses. 

In  a  necessary  case,  whenever  the  Judge  shall  deem  it  advisable,  the 
signatures  of  the  testator  and  absent  witnesses  may  be  verified  by  sworn 
statements  of  other  trustworthy  persons. 

Thereupon,  the  Judge  and  his  secretary  shall  affix  their  rubrics  to  each 
page  of  the  testament,  and  after  having  been  declared  a  nuncupative 
testament  by  the  Judge,  stating  its  date,  he  shall  order  it  transmitted 


234 

with  the  record  to  the  respective  Notary,  after  the  proper  registration 
thereof. 

Art.  1078.  A  sealed  solemn  testament  must  be  executed  before  a 
Notary  and  five  witnesses. 

Art.  1079.  He  who  is  unable  to  read  and  write,  cannot  execute  a 
sealed  testament. 

1075. 

Art.  1080.  That  which  essentially  constitutes  a  sealed  testament  is 
the  act  by  which  the  testator  presents  to  the  Notary  and  to  the  witnesses, 
a  sealed  instrument,  declaring  aloud,  and  in  such  manner  that  the 
Notary  and  the  witnesses  may  see,  hear  and  understand  (excepting  in 
the  case  of  the  following  article),  that  said  instrument  contains  his  tes- 
tament. The  dumb  may  make  such  declaration  by  writing  it  before 
the  Notary  and  the  witnesses. 

The  testament  must  be  signed  by  the  testator.  The  envelope  con- 
taining the  testament  shall  be  sealed  in  advance  or  will  be  sealed,  in 
such  manner  that  the  testament  cannot  be  removed  without  tearing 
the  envelope. 

The  testator  is  at  liberty  to  employ  a  seal  or  mark,  or  any  other  means 
to  insure  the  inviolability  of  the  envelope. 

The  notary  shall  state  upon  the  envelope,  under  the  heading  of  testa- 
ment, the  fact  that  the  testator  was  in  his  sound  mind ;  the  name,  sur- 
name and  domicile  of  the  testator  and  of  each  of  the  witnesses,  and  the 
place,  day,  month  and  year  of  the  execution. 

The  execution  is  closed  with  the  signatures  of  the  testator,  of  the 
witnesses  and  of  the  Notary,  upon  the  envelope. 

If  the  testator  should  be  unable  to  sign  at  the  time  of  the  execution, 
a  person  who  is  not  an  attesting  witness  shall  do  so  for  him,  and  if  one 
or  more  of  the  witnesses  should  not  know  how  or  be  unable  to  sign, 
others  shall  sign  for  those  who  cannot  sign,  so  that  seven  signatures 
shall  always  appear  on  the  envelope :  that  of  the  testator,  those  of  the 
five  witnesses,  and  that  of  the  Notary. 

During  the  execution  of  the  testament,  there  shall  be  present,  in 
addition  to  the  testator,  the  same  Notary  and  the  same  witnesses,  and 
there  shall  be  no  interruption  whatsoever,  excepting  during  the  brief 
intervals  that  an  accident  shall  so  require. 

•     1083  par.  2. 

Art.  108 1.  When  the  testator  cannot  understand  or  be  understood 
viva  voce,  he  can  execute  a  sealed  testament  only. 

The  testator  shall  write,  in  his  own  hand,  upon  the  envelope,  the  word 
testament,  or  its  equivalent  in  the  language  he  may  prefer,  and  shall  in 


235 

the  same  manner  make  the  designation  of  his  person,  stating,  at  least,  his 
name,  surname  and  domicile,  and  the  Nation  to  which  he  may  belong; 
and  as  to  the  rest,  the  provisions  of  the  preceding  article  shall  be  ob- 
served. 

1083  par.  2. 

Art.  1082.  A  sealed  testament,  before  being  executed,  shall  be  pre- 
sented to  the  Judge,  

The  testament  shall  not  be  opened  until  after  the  Notary  and  the  wit- 
nesses acknowledge  before  the  Judge  their  signatures  and  that  of  the  tes- 
tator, declaring,  furthermore,  that  in  their  opinion  it  is  closed,  sealed  or 
marked,  as  it  was  at  the  time  of  the  delivery. 

If  all  the  witnesses  cannot  be  present,  it  shall  suffice  that  the  Notary 
and  the  attesting  witnesses  present,  identify  their  signatures  and  that  of 
the  testator,  and  verify  those  of  those  absent. 

If  the  Notary  or  official  who  authorized  the  testament  cannot  appear, 
such  Notary  as  the  Judge  may  select  shall  replace  him  in  the  proceed- 
ings for  the  opening  thereof. 

In  a  necessary  case,  and  whenever  the  Judge  shall  deem  it  advisable, 
the  signatures  of  the  Notary  and  absent  witnesses  may  be  verified,  as  in 
the  case  of  the  third  paragraph  of  article  1077. 

1065,  1066. 

Art.  1083.  A  solemn  testament,  whether  opened  or  scaled,  in  which 
any  of  the  requisite  formalities  prescribed  by  the  preceding  articles,  are 
omitted,  shall  be  of  no  value. 

Nevertheless,  when  one  or  more  of  the  designations  prescribed  in 
article  1073,  in  the  fifth  paragraph  of  article  1080,  and  in  the  second  of 
art.  1 08 1,  should  be  omitted,  the  testament  shall  not  be  null  by  reason 
thereof,  if  there  be  no  doubt  as  to  the  personal  identity  of  the  testator, 
Notary  or  witness. 

Chapter  3. 

Of  the  Solemn  Testament  Executed  in  the  States  or  in  a  Foreign  Country. 

Art^  1084.  A  written  testament,  executed  in  any  of  the  States  or  in  a 
foreign  country,  shall  be  valid  in  the  Territories  if,  with  regard  to  form- 
alities, it  be  shown  that  it  conforms  to  the  laws  of  the  country  or  State 
in  which  it  was  executed,  and  if  in  addition  the  authenticity  of  the  re- 
spective instrument  is  proved  in  the  ordinary  form. 

21. 


236 

Art.  1085.  A  testament  executed  in  any  of  the  States  or  in  a  foreign 
country  shall  likewise  be  valid  in  the  Territories,  provided  that  the  fol- 
lowing requisites  are  present: 

1 .  That  the  testator  be  a  Colombian,  or,  if  a  foreigner,  that  he  have  a 
domicile  in  the  Territory. 

2.  That  it  be  authorized  by  a  Diplomatic  Minister  of  the  United  States 
of  Colombia  or  of  a  friendly  nation,  by  a  Secretary  of  Legation  holding  a 
commission  as  such,  issued  by  the  President  of  the  Republic,  or  by  a 
Counsl  holding  a  patent  as  such ;  but  it  shall  not  be  valid  if  authorized 
by  a  Vice-consul.  In  the  testament  special  mention  shall  be  made  of 
the  office,  and  of  the  said  commission  and  patent. 

3.  That  the  witnesses  be  Colombians  or  foreigners  domiciled  in  the 
city  in  which  the  testament  is  executed. 

4.  That  the  rules  governing  solemn  testaments,  executed  in  the  Terri- 
tories, be  observed  as  to  the  rest. 

5.  That  the  instrument  bear  the  seal  of  the  Legation  or  Consulate. 

6.  That  the  testament  which  has  not  been  executed  by  the  head  of  a 
legation,  bear  the  visee  (visto  bueno)  of  said  head,  if  there  be  any;  if  the 
testament  be  open,  at  the  foot,  and  if  closed,  upon  the  wrapper;  and 
that  said  head  place  his  rubric  at  the  beginning  and  at  the  end  of  each 
page,  when  the  testament  is  an  open  one. 

7.  That  there  be  sent  at  once  by  the  head  of  the  legation,  if  there  be 
one,  and  if  not,  directly  by  the  Consul,  a  copy  of  the  open  testament, 
or  of  the  superscription  of  the  sealed  one,  to  the  Secretary  of  Foreign 
Affairs  of  the  Republic,  who,  after  certifying  to  the  signature  of  the  head 
of  the  Legation,  or  of  the  Consul,  in  a  proper  case,  shall  transmit  the  copy 
to  the  Prefect  of  the  respective  territory. 

1012,  1065. 

Art.  1086.  Whenever  the  proceedings  prescribed  in  the  preceding 
article  are  had,  the  Chief  of  the  Territory  shall  forward  the  copy  to  the 
Judge  of  the  Circuit  of  the  last  domicile  the  deceased  may  have 
had  in  the  Territory,  in  order  that  said  copy  may  be  embodied  in  the 
protocols  of  a  Notary  of  the  said  domicile. 

Should  no  domicile  of  the  testator  be  known  in  the  Territory,  the 
testament  shall  be  forwarded  to  the  Prefect  or  the  Judge  of  the  Circuit 
of  the  capital  of  the  Territory,  for  incorporation  in  the  protocols  of  the 
Notarial  office  that  the  Judge  may  designate. 

1012,  1065. 


237 

Chapter  4.  * . 

0}  Privileged  Testaments. 

Art.  1087.  The  following  are  privileged  testaments: 

1 .  An  oral  testament. 

2.  A  military  testament. 

3.  A  maritime  testament. 

1092,  1098,  1 100,  1 103,  1 105,  1 1 12. 

Art.  1088.  In  privileged  testaments,  any  person  of  sound  judgment, 
whether  male  or  female,  over  eighteen  years  of  age,  who  can  see,  hear 
and  understand  the  testator,  and  not  having  the  disqualifications  men- 
tioned in  No.  8  of  article  1068,  may  serve  as  a  witness.  It  is  requisite, 
furthermore,  in  written  privileged  testaments,  that  the  witnesses  be 
able  to  read  and  write. 

The  putative  competency  shall  be  sufficient,  in  accordance  with  the 
provisions  of  article  1069. 

Art.  1089.  In  privileged  testaments,  the  testator  shall  declare  ex- 
pressly that  it  is  his  intention  to  dispose  by  testament;  the  persons 
whose  presence  is  necessary  shall  be  the  same  throughout  from  the 
beginning  to  the  end ;  and  the  act  shall  be  continuous,  or  only  inter- 
rupted during  the  brief  intervals  made  necessary  by  some  accident. 

These  formalities,  and  those  mentioned  in  the  following  articles,  shall 
be  the  only  ones  necessary. 

Art.  1090.  An  oral  testament  shall  require  the  presence  of  three 
witnesses,  at  least. 

Art.  1 09 1.  In  an  oral  testament,  the  testator  shall  make  his  state- 
ments and  dispositions  aloud,  so  that  all  may  see,  hear  and  understand 
him. 

Art.  1092.  An  oral  testament  shall  take  place  only  in  cases  of  danger 
so  imminent  to  the  life  of  the  testator,  that  there  appears  to  be  no  man- 
ner or  time  in  which  to  execute  a  solemn  testament. 

1 103,  1 1 10,  1 1 12. 

Art.  1093.  An  oral  testament  shall  have  no  value  whatsoever  if  the 
testator  should  die  after  thirty  days  subsequent  to  the  execution ;  or  if, 
having  died  before,  the  testament  shall  not  have  been  reduced  to  writing, 
with  the  formalities  which  will  be  stated,  within  thirty  days  next  fol- 
lowing the  death 

1064  first  paragraph,  1270  par.  2,  1101,  1109,  11 10. 

Art.  1094.  In  order  to  reduce  an  oral  testament  to  writing,  the  Judge 
of  the  Circuit  in  which  it  may  have  been  executed,  at  the  instance  of  any 


238 

person  who  may  have  an  interest  in  the  succession,  with  a  citation  of 
the  other  persons  interested,  residing  in  the  same  Circuit,  shall  receive 
the  sworn  statements  of  the  persons  present  as  attesting  witnesses,  and 
of  all  other  persons  whose  testimony  may  appear  to  him  pertinent  to 
elucidate  the  following  points : 

i.  The  name,  surname,  and  domicile  of  the  testator,  his  place  of  birth, 
the  Nation  to  which  he  belonged,  his  age,  and  the  circumstances  which 
made  him  believe  that  his  life  was  in  imminent  danger. 

2.  The  name  and  surname  of  the  attesting  witnesses,  and  their  place 
of  domicile. 

3.  The  place,  day,  month  and  year  of  the  execution. 

Art.  1095.  The  attesting  witnesses  shall  depose  upon  the  following 
points : 

1 .  Whether  the  testator  appeared  to  be  in  his  sound  mind. 

2.  Whether  he  expressed  the  intention  of  testating  before  them. 

3.  His  testamentary  declarations  and  dispositions. 

Art.  1096.  The  statements  referred  to  in  the  preceding  articles  shall 
be  transmitted  to  the  Judge  of  the  last  domicile,  if  he  did  not  himself 
receive  the  statements;  and  the  judge,  if  he  should  find  that  the  for- 
malities prescribed  have  been  observed,  and  that  the  last  will  of  the 
testator  is  clearly  established  by  the  statements,  shall  decide  that,  in 
accordance  with  said  statements,  the  testator  has  made  the  following 
declarations  and  dispositions  (enumerating  them) ;  and  he  shall  decree 
that  said  declarations  and  dispositions  be  valid  as  the  testament  of  the 
deceased,  and  that  his  decree  be  filed  as  such. 

Only  such  testamentary  declarations  and  dispositions  shall  be  so  con- 
sidered as  to  which  the  witnesses  who  were  present  by  way  of  formality, 
agree. 

Art.  1097.  The  testament  embodied  in  a  judicial  decree,  which  has 
been  filed  in  a  protocol,  may  be  impugned  in  the  same  manner  as  any 
other  authentic  testament. 

Art.  1098.  During  a  time  of  war,  the  testaments  of  soldiers  and  of 
other  persons  attached  to  a  body  of  troops  of  the  Territory  of  the  Repub- 
lic, as  also  those  of  volunteers,  hostages  and  prisoners  belonging  to  said 
body,  and  those  of  the  persons  accompanying  or  serving  any  of  these 
persons,  may  be  received  by  a  Captain,  or  by  an  officer  of  a  higher  rank 
than  Captain,  or  by  an  Intendant  of  the  Army  (Intendente  de  ejercito), 
Commissary  (Comisario)  or  Auditor  of  War  (Auditor  de  guerra). 

If  the  person  desirous  of  testating,  should  be  sick  or  wounded,  his 
testament  may  be  received  by  the  Chaplain,  physician  or  surgeon  attend- 
ing him ;  and  if  with  a  military  detachment,  by  the  officer  commanding 
it,  even  though  he  be  of  a  rank  lower  than  Captain. 

1 100,  1 103. 


239 

Art.  1099.  The  testament  shall  be  signed  by  the  testator,  if  he 
should  know  how  and  be  able  to  sign,  by  the  official  who  received  it, 
and  by  the  witnesses. 

If  the  testator  should  not  know  how  or  not  be  able  to  sign,  this  fact 
shall  be  stated  in  the  testament. 

Art.  1 100.  In  order  to  make  a  military  testament,  it  shall  be  neces- 
sary that  the  testator  be  on  a  military  expedition,  at  the  time  on  a  march 
or  campaign  against  the  enemy,  or  in  the  garrison  of  a  place  besieged  at 
the  time. 

1 103. 

Art.  i  10 1.  If  the  testator  should  die  before  the  expiration  of  ninety 
days  next  following  the  date  upon  which,  with  respect  to  him,  the  con- 
ditions permitting  a  military  testament  shall  have  ceased,  his  testament 
shall  be  valid,  as  if  it  had  been  executed  in  the  ordinary  form. 

If  the  testator  should  survive  this  period,  the  testament  shall  lapse 

1270  par.  2,  1093,  1 109,  mo. 

Art.  1 102.  In  order  that  a  military  testament  may  be  valid,  it  is 
necessary  that  it  bear  at  its  foot  the  visee  of  the  Superior  Commander  of 
the  expedition  or  of  the  Commander  of  the  garrison,  should  it  not  have 
been  executed  before  the  said  Commanders,  that  it  be  rubricated  at  the 
beginning  and  at  the  end  of  each  page  by  said  Superior  or  garrison  Com- 
mander, and  that  the  signature  of  the  latter  be  certified  to  by  the  Secre- 
tary of  War  and  Navy  of  the  Republic,  if  the  body  of  troops  should  be  in 
the  service  of  the  Nation,  or  by  the  Secretary  of  the  Prefect  of  the  Terri- 
tory, if  said  body  should  be  operating  in  said  Territory  only. 

In  order  that  this  testament  may  be  incorporated  in  the  protocol  of 
public  instruments,  the  Secretary  to  the  Prefect  shall  transmit  it,  after 
all  legal  formalities  have  been  complied  with,  to  the  Notary  of  the  last 
domicile  of  the  testator,  and  if  the  latter  should  be  ignored,  or  not  known, 
to  the  Notary  of  the  capital  of  the  Territory.  The  transmission  shall  be 
made  through  trfe  respective  Superior  Judge. 

Art.  1 103.  When  a  person  who  can  make  a  military  testament  shall 
be  in  imminent  danger,  he  may  make  a  verbal  testament  in  the  manner 
above  prescribed;  but  such  testament  shall  lapse  in  the  event  of  the 
testator  surviving  the  danger. 

The  examination  referred  to  in  articles  1094  and  1095  shall  be  held  as 
soon  as  possible  before  the  Auditor  of  War  or  the  person  acting  as  such. 

The  provisions  of  the  preceding  article  shall  be  observed  in  the  trans- 
mission of  the  result  of  the  examination  to  the  Judge  of  the  last  domicile. 

1 100. 


240 

Art.  1 104.  If  a  person  able  to  make  a  military  testament,  should  pre- 
fer to  execute  a  closed  or  sealed  testament,  the  formalities  prescribed  in 
article  1080  shall  be  observed,  any  of  the  persons  mentioned  at  the  end 
of  the  first  paragraph  of  article  1098  acting  as  authenticating  official. 

The  superscription  upon  the  envelope  shall  be  viseed,  like  the  testa- 
ment, in  the  case  of  article  1 102 ;  and  in  forwarding  it,  the  provisions  of 
the  said  article  shall  also  be  observed. 

1 100. 

Art.  1 105.  A  maritime  testament  may  be  made  on  board  a  Colombian 
man-of-war  on  the  high  seas. 

It  shall  be  received  by  the  Commander  or  by  the  second  in  command, 
in  the  presence  of  three  witnesses. 

If  the  testator  should  not  be  able  or  not  know  how  to  sign,  this  fact 
shall  be  stated  in  the  testament. 

A  duplicate  of  the  testament  shall  be  made  with  the  same  signatures 
as  the  original. 

1110,  1112. 

Art.  1 106.  The  testament  shall  be  kept  among  the  most  important 
papers  of  the  vessel,  and  a  note  of  its  execution  shall  be  made  upon  the 
log  of  the  vessel. 

Art.  1 107.  If  the  vessel,  before  returning  to  the  United  States  of 
Colombia,  should  stop  at  a  foreign  port  where  there  is  a  Colombian  Diplo- 
matic or  Consular  Agent,  the  Commander  shall  deliver  to  him  a  copy  of 
the  testament,  taking  a  receipt  therefor,  and  making  a  note  thereof 
upon  the  log,  in  order  that  it  may  have  the  effects  and  requisites  referred 
to  in  paragraphs  5,  6,  and  7,  of  article  1085  and  of  article  1086. 

If  the  vessel  should  arrive  in  Colombia  first,  said  copy  shall  be  sent 
under  the  proper  safeguards,  to  the  National  Executive  Power  in  order 
that  it  may  produce  the  effects  mentioned  in  the  preceding  paragraph. 

Art.  1 108.  Not  only  may  officers  and  members  of  the  crew  make  testa- 
ments in  the  form  prescribed  in  article  1105,  but  any  other  persons  on 
board  a  Colombian  man-of-war  on  the  high  seas,  may  do  so. 

1112. 

Art.  1 109.  A  maritime  testament  shall  not  be  valid,  unless  the  testa- 
tor shall  have  died  before  landing,  or  before  the  expiration  of  ninety 
days  next  after  the  landing. 

By  landing  shall  not  be  understood  a  short  stay  on  land  and  re-embar- 
cation  on  the  same  vessel. 

1270  par.  2,  1093,  1101,  1 1 10. 


241 

Art  1  i  10.  In  case  of  imminent  danger,  an  oral  testament  may  be 
made  on  board  a  man-of-war  on  the  high  seas,  the  provisions  of  article 
1 103  being  observed ;  and  the  testament  shall  lapse  if  the  testator  should 
survive  the  danger. 

The  examination  referred  to  in  articles  1094  and  1095  shall  be  con- 
ducted by  the  Commander,  or  his  second  in  command,  and  the  provi- 
sions of  article  1103  shall  be  observed  in  its  transmission  to  the  Judge 
through  the  Secretary  of  State. 

Articles  cited  and  11 12. 

Art.  iiii.  If  a  person  in  a  position  to  draw  a  maritime  testament 
should  prefer  to  execute  a  sealed  one,  the  formalities  prescribed  in 
article  1080  shall  be  observed,  the  Commander  of  the  vessel  or  his  second 
in  command  acting  as  authenticating  officer. 

Furthermore,  the  provisions  of  article  1106  shall  be  observed,  and  a 
copy  of  the  superscription  upon  the  envelope  shall  be  sent  to  the  Secre- 
tary of  State  to  be  placed  in  a  protocol,  as  a  testament,  according  to 
article  1107. 

Art.  1 1 12.  Upon  merchant  vessels  under  the  Colombian  flag,  testa- 
ments may  be  made  only  in  the  form  prescribed  in  article  1 105,  the  testa- 
ment being  received  by  the  Captain  or  his  second  in  command,  or  the 
pilot,  the  provisions  of  article  1 107  being  also  observed. 


242 


TITLE  IV. 

Of  Testamentary  Assignments.* 

Chapter  i. 

General  Rules. 

Art.  i  i  13.  Every  testamentary  assign   must  be   a   certain  and  de 
termined  person,  natural  or  juristic,  whether  determined  by  his  name  or 
by  clear  indications  in  the  testament.     Otherwise,  the  assignment  shall 
be  considered  as  not  written. 

Nevertheless,  assignments  for  charitable  purposes  shall  be  valid,  even 
though  not  for  determined  persons. 

Assignments  made  to  a  charitable  institution  without  designating  it, 
shall  be  given  to  such  charitable  institution  as  the  Chief  of  the  Territory 
may  designate,  preference  being  accorded  to  one  of  those  of  the  neighbor- 
hood or  residence  of  the  testator. 

What  is  left  for  the  soul  of  the  testator,  without  further  specifying  its 
purpose,  shall  be  understood  as  left  to  a  charitable  institution,  and  shall 
be  subject  to  the  provision  of  the  preceding  paragraph. 

What  is  left  in  general  to  the  poor,  without  determining  the  mode  of 
its  distribution,  shall  be  applied  to  the  charitable  or  eleemosynary  insti- 
tution situated  in  the  place  of  the  domicile  of  the  testator,  if  there  be  an 
institution  of  this  character  therein,  and  otherwise  it  shall  be  applied  to 
the  charitable  or  eleemosynary  institution  nearest  to  said  domicile,  ex- 
cepting in  the  following  cases : 

1 .  When  the  testator  shall  expressly  prohibit  it. 

2.  When  he  shall  have  expressed  his  intention  of  leaving  it  to  the  poor 
of  a  certain  place,  where  there  is  no%  public  charitable  or  eleemosynary 
institution. 

1 123,  1 127,  1473.     129,  130  of  law  153  of  1887. 

Art.  1 1 14.  The  amounts  received  as  a  consequence  of  the  provision 
contained  in  the  preceding  article,  shall  be  invested,  whatever  the  amount 
be,  and  the  interest  thereon  shall  be  devoted  to  the  expenses  of  the  in- 
stitutions to  which  they  may  pertain. 

Art.  1 1 15.  What  must  be  distributed  among  the  poor  of  a  specific 
place,  in  accordance  with  article  1 1 13,  shall  be  done  in  the  presence  of  the 
'  'Alcalde"  and  Municipal  "Personero"  of  the  District. 

The  distribution  which  may  be  made  in  accordance  With  the  provi- 
sions of  the  preceding  article  shall  be  made  the  subject  of  a  record  stat- 

*See  note  to  art.  1010  page  219. 


243 

ing  the  date  upon  which  the  distribution  took  place,  the  amount  distrib- 
uted and  the  names  and  surnames  of  the  beneficiaries.  This  record, 
which  shall  be  subscribed  by  the  officials  who  may  have  taken  part  in  the 
distribution,  by  the  distributing  executors,  heirs  or  legatees,  and  by  such 
of  the  beneficiaries  who  are  able  to  affix  their  signatures,  shall  be  attached 
to  the  inventories,  without  which  requisite  the  latter  shall  not  be  ap- 
proved by  the  Judge. 

Art.  iii6.  An  error  in  the  name  or  quality  of  the  assign  does  not 
vitiate  the  disposition,  if  there  be  no  doubt  as  to  the  person. 

1512,  746. 

Art.  1  i  17.  An  assignment  that  seems  to  be  founded  upon  an  error  of 
fact,  so  that  it  is  evident  that  without  this  error  it  would  not  have  been 
made,  shall  be  considered  as  not  written. 

Captatious  dispositions  shall  not  be  valid. 

By  such  shall  be  understood  those  by  which  the  testator  assigns  a  part 
of  his  property  under  the  condition  that  the  assign  leave  him  a  portion  of 
his  own  property  by  testament. 

1 5 10,  1 190,  2313. 

Art.  1 1 18.  No  testamentary  disposition  is  valid  which  the  testator 
has  not  expressed  in  any  manner  but  by  yes  or  no,  or  by  a  sign  of  affirma- 
tion or  negation,  in  answer  to  a  question. 

1061  No.  5. 

Art.  1 1 19.  No  testamentary  disposition  in  favor  of  the  Notary  who 
authorizes  the  testament,  or  of  the  official  acting  as  such,  or  of  the  spouse 
of  said  Notary  or  official,  or  of  any  of  the  ascendants,  descendants, 
brothers  and  sisters,  brothers-  and  sisters-in-law  or  salaried  servants  of 
the  same,  shall  be  valid. 

The  same  applies  to  dispositions  in  favor  of  any  of  the  witnesses. 

1024. 

Art.  1 1 20.  A  creditor  whose  credit  appears  in  the  testament  only, 
shall  be  considered  as  a  legatee  for  the  provisions  of  the  preceding  article. 

1058,  1191. 

Art.  1 1 2 1 .  The  selection  of  an  assign,  whether  absolutely,  or  whether 
from  a  certain  number  of  persons,  shall  not  depend  upon  the  mere  will 
of  another. 

112-. 


244 

Art.  i  122.  What  is  left  indiscriminately  to  the  relatives,  shall  be  un- 
derstood as  left  to  the  consanguineous  relatives  of  the  nearest  degree, 
according  to  the  order  of  intestate  succession,  the  right  of  representation 
taking  place,  in  accordance  with  the  legal  rules ;  unless  at  the  date  of  the 
testament  there  shall  have  been  only  one  of  this  degree,  as  in  such  case 
those  of  the  next  degree  shall  be  considered  as  called  at  the  same  time. 

1037. 

Art.  i  123.  If  the  assignment  should  be  conceived  or  written  in  such 
terms  that  it  is  not  known  which  of  two  or  more  persons  the  testator 
desired  to  designate,  none  of  said  persons  shall  be  entitled  thereto. 

1 1 13,  1532  par.  3,  1537  par.  2.      134  of  law  153  of  1887. 

Art.  1124.-  Every  assignment  must  be  either  under  a  universal  title 
or  of  determinate  species,  or  which  may  be  clearly  determined  from  the 
indications  in  the  testament,  or  of  generic  things  and  sums  which  may 
be  or  are  also  easily  determined.  Otherwise  it  shall  be  considered  as 
not  written. 

However,  if  the  assignment  be  destined  to  a  charitable  purpose  desig- 
nated in  the  testament,  without  determining  the  quota,  amount  or 
species  to  be  devoted  thereto,  the  assignment  shall  be  valid  and  the 
quota,  amount  or  specie  shall  be  determined,  taking  into  consideration 
the  nature  of  the  object,  the  other  dispositions  of  the  testator  and  the 
extent  of  the  patrimony,  in  the  part  which  is  freely  disposable  by  the 
testator. 

The  Judge  shall  make  the  determination,  after  hearing  the  municipal 
"Personero"  and  the  heirs,  and  conforming  in  so  far  as  possible,  to  the 
intention  of  the  testator. 

1008,  1 170,  1532  par.  3,  1 1 13  par.  2,  1145  par.  3,  795. 

Art.  1 1 25.  If  the  execution  of  an  assignment  should  be  left  to  the  will 
of  an  heir  or  legatee,  to  whose  benefit  it  would  be  to  refuse  it,  the  heir  or 
legatee  shall  be  obliged  to  carry  it  out,  unless  he  shall  prove  a  just  cause 
for  not  doing  so.  If  the  refusal  of  the  assignment  should  not  redound 
to  the  benefit  of  the  heir  or  legatee,  he  shall  not  be  obliged  to  state  rea- 
sons for  his  decision,  whatever  it  be. 

The  benefit  of  an  ascendant  or  descendant,  of  a  spouse  or  of  a  brother 
or  sister,  or  brother-  or  sister-in-law,  shall  be  considered,  for  the  pur- 
poses of  this  provision,  the  benefit  of  said  heir  or  legatee. 

1538  par.  2. 

Art.  i  i  26.  An  assignment  which,  on  account  of  the  absence  of  the 
assign,    is   transferred   to   another  person,   by   accretion,   substitution 


245 

or  any  other  cause,   shall  carry  with   it  all   transferable  obligations 
and  charges,  and  the  right  to  accept  or  repudiate  it  separately. 

An  assignment  that  may  have  been  repudiated  on  account  of  being 
excessively  encumbered,  by  all  the  persons  successively  called  thereto  by 
the  testament  or  the  law,  shall  be  deferred  in  the  last  place  to  the  persons 
in  whose  favor  the  charges  may  have  been  constituted. 

1037. 

Art.  i  127.  The  clearly  manifested  will  of  the  testator  shall  prevail 
over  the  rules  given  in  this  title  regarding  the  interpretation  and  effect 
of  testamentary  dispositions,  provided  it  be  not  opposed  to  legal  requi- 
sites or  prohibitions. 

To  ascertain  the  will  of  the  testator,  the  substance  of  the  dispositions, 
rather  than  the  words  used,  shall  be  considered. 

1418  last  par.,  1618 


Chapter  2. 
Of  Conditional  Testamentary  Assignments. 

Art.  1 1 28.  Testamentary  assignments  may  be  conditional. 

A  conditional  assignment  is,  in  a  testament,  that  which  depends  upon 
a  condition,  that  is  to  say,  upon  a  future  and  uncertain  event,  in  such 
manner  that  the  assignment  according  to  the  intention  of  the  testator 
shall  not  be  valid  if  the  positive  event  does  not  occur,  or  if  the  negative 
event  does  occur. 

Conditional  testamentary  assignments  are  subject  to  the  rules  given 
in  the  title  on  conditional  obligations,  with  the  exceptions  and  modifi- 
cations which  follow. 

1530  et  seq. 

Art.  1 1 29.  A  condition  which  consists  in  a  present  or  past  event 
does  not  suspend  the  execution  of  the  disposition.  If  it  exists  or  has 
existed,  it  shall  be  considered  as  not  written ;  if  it  does  not  exist  or  has 
not  existed,  the  disposition  is  void. 

The  past,  present  and  future,  shall  be  understood  with  relation  to  the 
moment  of  making  the  testament  unless  otherwise  stated. 

Art.  1 130.  If  the  condition  which  is  imposed  as  for  the  future,  con- 
sists in  an  event  which  took  place  during  the  life  of  the  testator,  and  the 
testator  at  the  time  of  making  his  will  knew  it,  and  the  event  is  one 
which  may  be  repeated,  it  shall  be  presumed  that  the  testator  requires 
its  repetition ;  if  the  testator  at  the  time  of  making  his  will  knew  it,  and 
the  event  is  of  those  which   cannot   be   repeated,  the  condition  shall 


246 

be  considered  as  fulfilled ;  and  if  the  testator  was  not  aware  of  it,  the  con- 
dition shall  be  considered  as  fulfilled,  whatever  be  the  character  of  the 
event  or  act. 

1 140,  1538. 

Art.  1  i  3  i  .  A  condition  not  to  contest  the  testament,  imposed  upon 
an  assign,  does  not  extend  to  proceedings  for  annulment,  for  some  de- 
fect in  its  form. 

Art.  1 132.  The  condition  imposed  upon  the  heir  or  legatee  not  to  con- 
tract marriage,  shall  be  considered  as  not  written,  unless  it  be  limited  to 
a  prohibition  from  contracting  it  before  the  age  of  twenty-five  years  or 
under. 

Art.  1 133.  A  condition  of  remaining  in  a  state  of  widow  or  widower 
hood  shall,  likewise,  not  be  considered  as  imposed;  unless  the  assign 
should  have  one  or  more  children  from  the  former  marriage,  at  the  time 
the  assignment  is  deferred  to  him  or  her. 

Art.  1 134.  The  preceding  articles  are  not  opposed  to  providing  for 
the  support  of  a  woman  while  she  remains  single  or  a  widow,  by  leaving 
her  for  such  time  a  right  of  usufruct,  of  use,  or  of  habitation,  or  a  period- 
ical pension. 

Art.  1 135.  The  condition  to  marry  or  not  marry  a  determined  person, 
and  that  of  adopting  any  state  or  profession,  permitted  by  the  laws,  even 
though  incompatible  with  the  state  of  matrimony,  shall  be  valid. 

Art.  1 136.  Testamentary  assignments,  under  a  suspensive  condition, 
do  not  confer  upon  the  assign  any  right  whatsoever,  during  the  pendency 
of  the  condition,  except  that  of  requestng  the  necessary  judicial  orders 
for  their  preservation. 

If  the  assign  shall  die  before  the  fulfillment  of  the  condition,  he  does 
not  transmit  any  right  whatsoever. 

Upon  the  fulfillment  of  the  condition,  he  shall  not  be  entitled  to  the 
fruits  that  have  accrued  during  the  intervening  time,  unless  the  testator 
shall  have  granted  them  to  him  expressly. 

820,  1549  pars.  2  and  3,  1019  par.  2. 

Art.  11 37.  Conditional  dispositions  which  establish  fidei  commissa 
and  grant  a  fiduciarv  ownership  are  governed  by  the  Title  Of  Fiduciary 
Property. 

Chapter  3. 

Limited  Testamentary  Assignments. 

Art.  1 138.  Testamentary  assignments  may  be  limited  to  terms  or 
days,  upon  which  the  actual  enjoyment  or  extinction  of  a  right  depends ; 


247 

and  they  shall  then  be  subject  to  the  rules  given  in  the  Title  Of  Limited 
Obligations,  with  the  following  explanations : 

i55i,  1536,  801. 

Art.  i  139.  The  day  is  certain  and  determined,  if  it  must  necessarily 
arrive,  and  it  is  known  when,  such  as  such  a  day  of  such  a  month  and 
year,  or  so  many  days,  months,  or  years  after  the  date  of  the  testament 
or  the  death  of  the  testator. 

It  is  certain  but  undetermined,  if  it  must  necessarily  arrive,  but  it  is 
not  known  when ;  as  the  day  of  the  death  of  a  person. 

It  is  uncertain  but  determined,  if  it  may  or  may  not  arrive;  but  sup- 
posing that  if  it  should  arrive  it  is  known  when,  as  the  day  a  person 
attains  twenty-five  years  of  age. 

Finally,  it  is  uncertain  and  undetermined,  if  it  be  not  known  if  it  will 
arrive,  nor  when,  as  the  day  a  person  marries. 

Art.  1 140.  What  is  assigned  from  a  day  that  arrives  before  the  death 
of  the  testator,  shall  be  understood  as  assigned  for  after  his  days  and 
shall  not  be  due  until  the  succession  is  opened. 

1 1 30. 

Art.  1 141.  An  uncertain  and  undetermined  day  is  always  a  real  con- 
dition, and  is  subject  to  the  rules  governing  conditions. 

Art.  1 142.  An  assignment  from  a  determined  and  certain  day  gives 
the  assign,  from  the  moment  of  the  death  of  the  testator,  the  property 
of  the  thing  assigned,  and  the  right  to  alienate  and  transfer  it ;  but  not 
to  demand  it  before  the  arrival  of  the  day. 

If  the  testator  expressly  impose  the  condition  of  tfie  existence  of  the 
assign  on  that  day,  it  shall  be  subject  to  the  rules  governing  con- 
ditional assignments. 

810,  820. 

Art.  1 143.  An  assignment  from  a  certain  but  undetermined  day  is 
conditional,  and  involves  the  condition  of  the  existence  of  the  assign  on 
that  day. 

If  it  be  known  that  the  assign  will  be  in  existence  on  that  day  (as  when 
the  assignment  is  in  favor  of  a  permanent  establishment),  the  provisions 
of  the  first  paragraph  of  the  preceding  article  shall  apply. 

799,  1019. 

Art.  1 144.  An  assignment  from  an  uncertain  day,  whether  deter- 
mined or  not,  is  always  conditional. 

Art.  1 145.  An  assignment  to  a  certain  day,  whether  determined  or 
not,  constitutes  a  usufruct  in  favor  of  the  assign. 


248 

An  assignment  of  periodical  prestations  cannot  be  transferred  mortis 
causa,  and  terminates,  as  does  the  usufruct,  upon  the  arrival  of  the  day, 
and  by  the  natural  death  of  the  beneficiary. 

If  it  be  in  favor  of  a  corporation  or  foundation,  it  cannot  last  more 
than  thirty  years. 

793  No.  2,  800,  825,  829,  94,  863,  865,  415,  1 146. 

Art.  1 146.  An  assignment  to  a  day  uncertain  but  determined,  united 
to  the  existence  of  the  assign,  constitutes  a  usufruct ;  unless  it  shall  con- 
sist of  periodical  prestations. 

If  the  day  be  united  to  the  existence  of  another  person  than  the  assign, 
the  usufruct  shall  be  considered  as  granted  to  the  date  on  which,  the 
other  person  being  living,  the  day  would  arrive  for  such  person. 

2297  and  articles  cited. 


Chapter  4. 
Of  Modal  Assignments. 

Art.  1 147.  If  anything  be  assigned  to  a  person  in  order  that  he  hold 
it  as  his  own,  with  the  obligation  of  applying  it  to  a  special  purpose,  as 
that  of  making  certain  works  or  assuming  certain  charges,  this  application 
is  a  mode  and  not  a  suspensive  condition.  The  mode,  consequently, 
does  not  suspend  the  acquisition  of  the  thing  assigned. 

Art.  1 148.  In  modal  assignments  the  resolutory  clause  is  that  which 
imposes  the  obligation  of  making  restitution  of  the  thing  and  the  fruits, 
if  the  mode  be  not  complied  with. 

A  resolutory  clause  shall  not  be  considered  as  involved,  when  the 
testator  does  not  express  it. 

1536,  1546. 

Art.  1 149.  In  order  that  the  thing  assigned  subject  to  a  mode  may 
be  acquired,  it  is  not  necessary  that  a  bond  or  security  be  given  to  guar- 
antee restitution  in  the  event  the  mode  be  not  fulfilled. 

834,  835. 

Art.  1 1 50.  If  the  mode  be  to  the  benefit  of  the  assign  exclusively,  it 
does  not  impose  any  obligation  whatsoever,  unless  it  carries  a  resolutory 
clause. 

1 148. 

Art.  1 1 5 1 .  If  the  mode  be  from  its  nature  impossible,  or  inducive  of 
an  illegal  or  immoral  act,  or  conceived  in  unintelligible  terms,  the  dis- 
position shall  not  be  valid. 


249 

If  the  mode,  without  an  act  or  fault  on  the  part  of  the  assign,  is  im- 
possible only  in  the  special  form  prescribed  by  the  testator,  it  may  be 
fulfilled  in  some  other  form  which  will  not  alter  the  substance  of  the  dis- 
position, and  provided  it  be  approved  in  this  character  by  the  Judge, 
with  a  citation  of  the  persons  interested. 

If  the  mode,  without  an  act  or  fault  on  the  part  of  the  assign,  becomes 
entirely  impossible,  the  assignment  shall  subsist  without  the  charge. 

1 518  par.  3,  1537,  1530  et  seq. 

Art.  1 152.  If  the  testator  shall  not  determine  sufficiently  the  time  or 
the  special  form  in  which  the  mode  is  to  be  fulfilled,  the  Judge  may  de- 
termine the  same,  conforming  in  so  far  as  possible  to  the  will  of  the 
former,  and  leaving  to  the  modal  assign  a  benefit  amounting  to  at  least 
one-fifth  the  value  of  the  thing  assigned. 

1551  par.  2,  1 127. 

Art.  1 153.  If  the  mode  consist  of  an  act  that,  for  the  ends  the  testa- 
tor had  in  view,  it  is  indifferent  what  person  executes  it,  it  is  trans- 
missible to  the  heirs  of  the  assign. 

Art.  1 154.  Whenever  it  shall  be  necessary  to  carry  out  the  resolutory 
clause,  a  sum  commensurate  with  the  purpose  shall  be  delivered  to  the 
person  in  whose  favor  the  mode  has  been  constituted,  and  the  remainder 
of  the  value  of  the  thing  assigned  shall  accrue  to  the  inheritance,  unless 
the  testator  shall  have  provided  otherwise. 

The  assign  upon  whom  the  mode  has  been  imposed  shall  not  enjoy 
the  benefit  that  may  accrue  to  him  from  the  preceding  provision. 


Chapter  5. 
Of  Assignments  Under  a  Universal  Title. 

Art.  1 155.  The  assigns  under  a  universal  title,  whatever  they  be 
called,  and  even  though  they  be  classified  in  the  testament  as  legatees, 
are  heirs :  they  represent  the  person  of  the  testator  to  succeed  him  in  all 
his  transferable  rights  and  obligations. 

The  heirs  are  also  bound  to  assume  the  testamentary  charges,  that  is, 
those  which  are  constituted  by  the  testament  itself,  and  which  are  not 
imposed  upon  determined  persons. 

1008,  ion,  1475,  141 1,  1580,  1836,  1227,  1347,  1395  No.  4,  1417, 
1162. 

Art.  1 1 56.  The  assign  who  has  been  called  to  the  succession,  in  gen- 
eral terms,  which  do  not  designate  any  quotas,  as  "Let  So  and  so  be  my 
heir,"  or  "I  leave  my  property  to  So  and  so,"  is  a  universal  heir. 


250 

But  should  he  participate  with  heirs  of  quotas,  he  shall  be  understood 
to  be  the  heir  of  that  quota  which,  added  to  those  designated  in  the 
testament,  makes  up  the  unit  or  whole. 

If  there  be  a  number  of  heirs  instituted,  without  a  designation  of 
quotas,  they  shall  divide  the  inheritance,  or  the  quota  thereof  falling  to 
them,  in  equal  portions  among  themselves. 

Art.  i  157.  If  other  assignments  having  been  made,  the  residue  of  the 
property  is  disposed  of,  and  all  the  assignments,  excepting  that  of  the 
residue,  are  under  a  singular  title,  the  one  receiving  the  residue  is  the 
universal  heir :  if  any  of  the  other  assignments  are  of  quotas,  the  one  re- 
ceiving the  residue  is  the  heir  of  the  quota  remaining  to  make  up  the 
unit. 

1008. 

Art.  1 1 58.  Should  there  be  no  universal  heirs,  but  only  heirs  to  quotas, 
and  those  designated  in  the  testament  do  not  together  make  up  the 
whole  unit,  the  intestate  heirs  are  understood  to  be  called  as  heirs  to 
the  residue. 

If  there  should  be  no  assignment  in  the  testament  under  a  universal 
title,  the  intestate  heirs  are  universal  heirs. 

1037,  1009  par.  2. 

Art.  1 159.  If  the  quotas  designated  in  the  testament  complete  or  ex- 
ceed the  unit,  in  such  case  the  universal  heir  shall  be  considered  as  insti- 
tuted to  a  quota  the  numerator  of  which  is  the  unit,  and  the  denominator 
the  total  number  of  heirs ;  unless  he  shall  have  been  instituted  the  heir 
to  the  residue,  in  which  case  he  shall  have  nothing. 

Art.  1 1 60.  The  quotas  having  been  reduced  to  a  common  denominator 
including  those  computed  according  to  the  preceding  article,  the  in- 
heritance shall  be  represented  by  the  sum  of  the  numerators,  and  the  net 
quota  of  each  heir  by  his  respective  numerator. 

Art.  1 161.  The  provisions  of  this  title  are  understood  as  without 
prejudice  to  the  action  for  amendment  (accion  de  reforma)  which  the 
law  grants  the  forced  heirs  and  the  surviving  spouse. 

1240,  1274  et  seq. 

Chapter  6. 

Of  Assignments  Under  a  Singular  Title. 

Art.  1 162.  The  assigns  under  a  singular  title,  whatever  name  be  ap- 
plied to  them,  and  even  though  they  be  called  heirs  in  the  testament, 
are  legatees:  they  do  not  represent  the  testator;  they  have  no  other 
rights  or  charges  but  those  expressly  conferred  or  imposed  upon  them. 


25i 

This,  nevertheless,  shall  be  understood  as  without  prejudice  to  their 
liability  subsidiary  to  that  of  the  heirs,  and  that  which,  may  accrue  to 
them  in  the  event  of  an  action  for  amendment. 

1008,  ion,  1199,  1200,  1419,  1420,  1155. 

Art.  1 163.  The  legacy  of  things  which  at  the  time  of  the  execution  of 
the  testament  may  be  of  public  property  and  common  use,  or  may  form 
part  of  a  building,  so  that  they  cannot  be  removed  without  injuring  it,  is 
not  valid,  unless  the  cause  shall  disappear  before  the  legacy  is  deferred. 

1013  par.  2,  672,  658. 

Art.  1 164.  The  testator  may  order  that  a  specific  thing  belonging  to 
another  be  acquired  for  the  purpose  of  giving  it  to  some  person  or  to  em- 
ploy it  in  some  charitable  purpose;  and  if  the  assign  upon  whom  this 
obligation  is  imposed  cannot  fulfill  it,  because  the  owner  of  the  specific 
thing  refuses  to  sell  it,  or  demands  an  excessive  price  therefor,  the  said 
assign  shall  be  obliged  only  to  give  in  money  the  just  value  of  the  specific 
thing. 

And  if  the  specific  thing  belonging  to  another  which  has  been  be- 
queathed shall  have  been  acquired  previously  by  the  legatee  or  for  the 
charitable  purpose,  its  price  shall  be  due  only  in  so  far  as  the  acquisition 
shall  have  been  under  an  onerous  title  and  at  an  equitable  price. 

1423. 

Art.  i  165.  The  legacy  of  a  specific  thing  which  is  not  the  testator's, 
nor  of  the  assign  upon  whom  the  obligation  of  giving  it  has  been  imposed, 
is  null;  unless  it  shall  appear  in  the  testament  that  the  testator  knew 
that  the  thing  was  not  his  nor  said  assign's;  or  unless  the  thing  belong- 
ing to  another  be  bequeathed  to  a  legitimate  descendant  or  ascendant  of 
the  testator,  or  to  his  spouse ;  as  in  such  cases  the  procedure  prescribed 
in  the  first  paragraph  of  the  preceding  article  shall  be  observed. 

Art.  1 1 66.  If  the  thing  bequeathed  belonging  to  another  passed,  be- 
fore the  death  of  the  testator,  into  the  ownership  of  the  latter  or  of  the 
assign  upon  whom  the  obligation  to  give  it  had  been  imposed,  the  legacy 
shall  be  due. 

Art.  1 167.  The  assign  obliged  to  furnish  the  legacy  of  a  thing  belong- 
ing to  another,  which  he  acquires  after  the  death  of  the  testator,  shall 
owe  it  to  the  legatee;  who,  nevertheless,  cannot  demand  it,  unless  he 
return  what  he  received  therefor,  according  to  article  1 164. 

Art.  1 168.  If  the  testator  had  in  the  thing  bequeathed  only  a  portion, 
quota  or  right,  it  shall  be  presumed  that  he  desired  to  bequeath  only  such 
portion,  quota  or  right. 


The  same  applies  to  what  an  assign  is  obliged  to  give,  in  which  he  has 
only  a  portion,  .quota  or  right. 

66,  752,  1799. 

Art.  1 169.  If  when  a  specific  thing  is  bequeathed,  the  place  where  it  is 
kept  is  designated,  and  it  should  not  be  found  there,  but  elsewhere,  the 
specific  thing  shall  be  due :  if  not  found  anywhere,  a  specific  thing  of 
the  same  kind  of  fair  quality  shall  be  due,  but  only  to  the  persons  desig- 
nated in  article  1 165. 

Art.  1 1 70.  The  legacy  of  a  fungible  thing,  the  amount  of  which  is  not 
determined  in  some  manner,  is  not  valid. 

If  the  fungible  thing  be  bequeathed,  stating  the  place  where  it  is  to  be 
found,  the  amount  found  there  at  the  time  of  the  death  of  the  testator 
shall  be  due,  in  the  event  that  the  testator  shall  not  have  determined 
the  amount;  or  as  much  as  the  testator  shall  have  determined,  and 
not  more.  If  the  amount  found  should  be  less  than  the  amount  des- 
ignated, only  the  amount  existing  shall  be  due :  and  if  no  amount  of 
said  fungible  thing  is  found,  nothing  shall  be  due. 

This,  nevertheless,  shall  be  understood  with  the  following  limitations : 

1 .  A  legacy  of  a  fungible  thing  the  amount  of  which  is  determined  by 
the  testator  in  favor  of  the  persons  designated  in  article  1 1 65,  shall  always 
be  valid. 

2.  It  shall  make  no  difference  that  the  thing  bequeathed  should  not 
be  found  in  the  place  designated  by  the  testator,  when  the  legacy  and  the 
indication  of  the  place  do  not  form  an  indivisible  clause. 

Thus,  a  legacy  of  ' '  thirty  hectolitersof  wheat, which  are  in  such  a  place, ' ' 
shall  be  valid,  even  though  no  wheat  should  be  found  in  such  place ;  but 
a  legacy  of  ' '  the  thirty  hectoliters  of  wheat,  which  will  be  found  in  such 
a  place,"  is  not  valid,  except  as  to  the  wheat  there  found,  and  not  exceed- 
ing thirty  hectoliters. 

1 1 24. 

Art.  1 1 7 1 .  The  legacy  of  a  future  thing  is  valid,  provided  it  comes 
into  existence. 

Art.  1 172.  If  of  many  specific  things  existing  in  the  patrimony  of  the 
testator,  one  is  bequeathed,  without  stating  which,  a  thing  of  average 
quantity  or  value,  among  those  comprised  in  the  legacy,  shall  be  due. 

1566. 

Art.  1 1 73.  Generic  legacies  which  are  not  limited  to  what  exists  in  the 
patrimony  of  the  testator,  as  a  cow,  a  horse,  impose  the  obligation  of  giv- 
ing a  thing  of  average  quality  or  value  of  the  same  kind. 

1566. 


253 

Art.  i  1 74.  If  one  of  various  things  which  the  testator  thought  he  had, 
is  bequeathed,  and  he  has  left  one  only,  that  one  left  shall  be  due. 

If  he  has  not  left  any,  the  legacy  shall  not  be  valid,  except  in  favor  of 
the  persons  mentioned  in  article  1 165 ;  who  shall  be  entitled  to  demand 
only  an  average  thing  of  the  same  kind,  even  though  the  testator  shall 
have  granted  them  the  right  of  selection. 

But  if  a  thing  of  a  kind  whose  value  has  no  limit,  is  bequeathed,  such 
as  a  house,  a  plantation,  and  there  is  none  of  the  same  kind  among  the 
property  of  the  testator,  nothing  shall  be  due,  not  even  to  the  persons 
designated  in  article  1165.  —  _ 

Art.  i  i  75.  If  the  selection  of  a  thing  from  among  a  number  is  ex- 
pressly granted  to  the  person  obligated,  or  to  the  legatee*  either  the  for- 
mer or  the  latter  may  offer  or  select  at  their  option. 

If  the  testator  should  entrust  the  selection  to  a  third  person,  the  latter 
may  select  at  his  will ;  and  should  he  not  fulfill  his  trust  within  the  time 
fixed  by  the  testator,  or,  in  the  absence  thereof,  by  the  Judge,  the  rule  of 
article  1 1 72  shall  apply. 

After  one  selection,  no  other  can  be  made,  except  for  a  cause  of  deceit 
or  fraud. 

15 1 5,  1 540  par.  2. 

Art.  1 1 76.  A  specific  thing  bequeathed  is  due  in  the  state  in  which  it 
lay  have  existed  at  the  time  of  the  death  of  the  testator,  comprising 
ie  utensils  necessary  for  its  use,  which  are  present  therewith. 

716,  833,  1017,  1012,  1128,  1138,  1322,  1395,  1542,  1543. 

Art.  1 177.  If  the  thing  devised  be  an  estate,  the  lands  and  the  new 
mildings  which  the  testator  may  have  added  thereto  after  making  the 
:estament,  shall  not  be  comprised  in  the  devise ;  and  if  what  has  been 
lewly  added  should  form  with  the  rest,  at  the  time  of  the  opening  of  the 
succession,  a  whole  which  cannot  be  divided  without  grave  loss,  and  the 
idditions  are  worth  more  than  the  estate  in  its  original  condition,  the  latter 
ralue  only  shall  be  due  the  legatee :  should  they  be  worth  less,  all  of  it 
lall  be  due  the  legatee,  with  the  charge  of  paying  the  value  of  the  ad 
ditions. 

But  a  devise  of  a  measure  of  land,  as  one  thousand  square  meters,  shall 
not  be  increased  in  any  case  by  the  acquisition  of  the  adjoining  lands,  and 
if  the  former  cannot  be  separated  from  the  latter,  its  value  only  shall  be 
due. 

If  a  lot  be  devised,  and  the  testator  should  subsequently  build  thereon, 
the  value  of  the  lot  only  shall  be  due. 

*The  Civil  Code  omits  in  the  first  paragraph  of  this  article  the  words  in  italics; 
the  article  was  repealed  by  article  45  of  law  57  of  1887  and  substituted  by  article  29 
of  the  same  law,  which  contains  the  words  which  appear  here  in  italics. 


254 

Art.  i  178.  If  part  of  an  estate  be  left,  the  servitudes  whieh  may  be 
necessary  for  its  enjoyment  and  cultivation  shall  be  understood  as  be- 
queathed. 

66,  908,  938. 

Art.  i  179.  If  a  house  be  devised,  with  its  furniture  or  with  all  its  con- 
tents, there  shall  not  be  understood  as  comprised  in  the  devise  the  things 
enumerated  in  the  second  paragraph  of  article  662,  but  only  such  as  form 
the  household  furniture,  located  therein ;  and  if  a  country  plantation  be 
devised  in  the  same  manner,  the  devise  shall  not  be  understood  to  com- 
prise other  things  than  those  which  serve  for  the  cultivation  and  exploi- 
tation of  the  plantation,  and  which  are  situated  thereon. 

In  either  case  none  of  the  other  objects  contained  in  the  house  or  on 
the  plantation  shall  be  due,  but  those  which  the  testator  shall  expressly 
designate. 

Art.  1 1 80.  If  a  carriage  of  any  kind  be  bequeathed,  the  harness  and 
animals  which  the  testator  ordinarily  used  in  connection  therewith, 
which  may  be  existing  therewith  at  the  time  of  his  death,  shall  also  be 
considered  as  bequeathed. 

Art.  1 1 8 1 .  If  a  flock  or  herd  be  bequeathed,  all  the  animals  of  which  it 
consists  at  the  time  of  the  death  of  the  testator,  and  no  more,  shall  be 
due. 

Art.  1 182.  If  different  quotas  of  one  and  the  same  thing  shall  be  be- 
queathed to  different  persons,  the  rules  of  the  preceding  paragraph  shall 
be  observed  in  its  division.* 

Art.  i  183.  A  specific  thing  bequeathed  passes  to  the  legatee  with  its 
servitudes,  rent  and  other  real  charges. 

Art.  1 184.  If  a  thing  be  bequeathed  with  an  injunction  not  to  alienate 
it,  and  the  alienation  does  not  compromise  any  right  of  a  third  person, 
the  clause  not  to  alienate  shall  be  considered  as  not  written. 

2022,  1931,2440.     109  of  law  153  of  1887. 

Art.  1 185.  Not  only  corporeal  things,  but  rights  and  actions  may  also 
be  bequeathed. 

By  the  act  of  bequeathing  the  title  of  a  credit,  it  shall  be  understood 
that  the  credit  is  also  bequeathed. 

The  legacy  of  a  credit  comprises  that  of  the  interest  due ;  but  it  sub- 

*  The  Colombian  legislator  took  textually  this  article  from  the  Code  of  Chile,  a  Code 
whose  Titles  are  divided  into  paragraphs,  and  not  into  Chapters,  as  is  this  Code. 
Hence  it  is  that  the  rules  of  the  preceding  "paragraph"  do  not  apply. 

Article  45  of  law  57  of  1887,  expressly  repeals  the  article  commented  on,  which  is 
replaced  by  art.  30  of  said  law  57,  the  purpose  of  which  is  to  make  said  correction. 


255 

sists  only  as  to  that  part  of  the  credit  or  interest  which  the  testator 
may  not  have  received. 

761,  1959.     33  of  law  57  of  1887. 

Art.  1 186.  If  a  thing  which  was  pledged  to  the  testator,  is  bequeathed 
to  the  debtor,  the  debt  is  not  thereby  extinguished,  but  only  the  right  of 
pledge ;  unless  it  shall  clearly  appear  that  the  will  of  the  testator  was  to 
extinguish  the  debt. 

i7i3par.  2. 

Art.  i  187.  If  the  testator  remits  a  debt  in  the  testament,  and  after- 
wards sues  the  debtor,  or  accepts  the  payment  offered  him,  the  debtor 
cannot  take  advantage  of  the  waiver;  but  if  it  should  have  been  paid 
without  the  notice  or  consent  of  the  testator,  the  legatee  may  demand 
what  was  paid. 

2313- 

Art.  i  188.  If  a  person  be  released  from  the  payment  of  what  he  owes, 
without  the  determination  of  a  sum,  the  release  shall  cover  only  the 
debts  existing  at  the  date  of  the  testament. 

Art.  1 1 89.  What  is  bequeathed  to  a  creditor  shall  not  be  considered 
as  on  account  of  his  credit,  if  it  be  not  expressed,  or  if  it  should  not  clearly 
appear  from  the  circumstances  that  it  is  the  intention  of  the  testator  to 
pay  the  debt  with  the  legacy. 

If  this  should  be  stated  or  appear,  the  debt  must  be  recognized  accord- 
ing to  the  terms  acknowledged  by  the  testator,  or  proof  be  adduced  that 
the  obligation  was  contracted;  and  the  creditor  may,  at  his  option, 
demand  payment  according  to  the  terms  under  which  the  debtor  was 
bound,  or  under  those  stated  in  the  testament. 

Art.  1 190.  If  the  testator  orders  paid  what  he  believes  he  owes  and 
docs  not  owe,  the  disposition  shall  be  considered  as  not  written. 

If  by  reason  of  a  determined  debt,  more  than  the  amount  thereof  is 
ordered  paid,  the  excess  shall  not  be  due,  unless  the  intention  of  donating 
it  shall  be  apparent. 

1117,  1502,  1510,  1511,  2313. 

Art.  1 191.  The  debts  confessed  in  the  testament,  and  of  which  on  the 
other  hand  there  is  not  a  principle  of  proof  in  writing,  shall  be  considered 
as  gratuitous  legacies,  and  shall  be  subject  to  the  same  liabilities  and 
deductions  as  other  legacies  of  this  character. 

1058,  1767,  1 120,  1795.     91,  92  and  93  of  law  153  of  1887. 


256 

Art.  i  192.  If  voluntary  support  be  bequeathed  without  determining 
the  form  and  amount  thereof,  it  shall  be  due  in  the  form  and  to  the 
amount  which  the  testator  was  accustomed  to  furnish  to  the  same  per- 
son; and  in  the  absence  of  such  determination,  it  shall  be  governed  by 
the  necessities  of  the  legatee,  his  relations  with  the  testator,  and  the 
extent  of  the  patrimony  of  which  the  testator  has  been  able  to  dispose 
freely. 

If  the  testator  should  not  fix  the  time  of  the  duration  of  the  contri- 
bution of  support,  it  shall  be  understood  that  it  is  to  last  during  the 
entire  life  of  the  legatee. 

If  an  annual  pension  be  bequeathed  for  the  education  of  the  legatee, 
it  shall  continue  until  he  attains  the  age  of  twenty-one  years,  and  shall 
cease  if  he  die  before  said  age. 

1418  par.  3,  419,  422,  1796  No.  5,  par.  2. 

Art.  i  193.  The  obligation  to  pay  the  legacy  ceases  with  the  destruc 
tion  of  the  specific  thing  bequeathed. 

The  alienation  of  specific  things  bequeathed,  in  whole  or  in  part,  by 
an  act  inter  vivos,  involves  the  revocation  of  the  legacy  in  whole  or  in 
part;  and  the  legacy  shall  not  subsist  or  revive,  even  though  the  aliena- 
tion shall  have  been  null,  and  even  though  the  specific  things  bequeathed 
return  to  the  power  of  the  testator. 

A  pledge,  mortgage  or  rent  charge  (censo)  constituted  upon  the  thing 
bequeathed,  does  not  extinguish  the  legacy,  but  charges  it  with  said 
pledge,  mortgage  or  rent  charge. 

If  the  testator  shall  substantially  alter  the  movable  thing  bequeathed, 
as  when  he  should  have  a  cart  made  of  the  wood,  or  cloth  from  wool,  it 
shall  be  understood  that  he  revokes  the  legacy. 

!543>  1561,  1604  par.  2,  1606,  1607,  1729  etseq. 

Chapter  7. 

Of  Revocable  Donations. 

Art.  i  194.  A  revocable  donation  is  that  which  the  donor  may  revoke 
at  will. 

112,   125,   150,   164,  304,   1243  to  1246,   1258,   1259,   H82  et  seq., 
1842  et  seq.,  especially  1846  and  1848. 

A  donation  mortis  causa  is  the  same  as  a  revocable  donation;  and  a 
donation  inter  vivos,  the  same  as  an  irrevocable  donation. 

1056,   1057,   1 197  and  commentary,   1443  and  citations  to  said 
article. 


257 

Art.  i  195.  Only  such  donation  shall  be  valid  as  a  revocable  donation 
which  shall  have  been  made  with  the  formalities  which  the  law  pre- 
scribes for  the  same,  or  that  to  which  the  law  expressly  gives  this  char- 
acter. 

If  the  donation  be  made  with  the  formalities  required  of  those  inter 
vivos,  and  the  donor  in  the  instrument  reserves  to  himself  the  power 
to  revoke  it,  it  shall  be  necessary,  in  order  that  it  subsist  after  the  death 
of  the  donor,  that  the  latter  shall  have  expressly  confirmed  it  in  a  testa- 
mentary act ;  unless  the  donation  be  from  one  spouse  to  the  other. 

Donations  which  are  not  embodied  in  any  instrument  whatsoever, 
shall  be  valid  as  donations  inter  vivos,  in  so  far  as  legal ;  excepting  those 
made  between  spouses,  which  may  always  be  revoked. 

1056,  1 197,  1457,  1458,  1 196  last  par.,  745  par.  2,  1775. 

Art.  1 196.  Revocable  donations  from  persons  who  cannot  make  a  will 
or  donate  inter  vivos,  are  null. 

Those  between  persons  who  cannot  receive  testamentary  assignments 
or  donations  inter  vivos  from  each  other,  are  likewise  null. 

Nevertheless,  donations  between  spouses,  shall  be  valid  as  revocable 
donations. 

1061,  1444,  1445,  1449,  101%  etseq.,  11 19,  745  par.    2,  1056,  1195, 
1795  pars.  2  and  3,  1844,  1852. 

Art.  1 197.  The  making  of  revocable  donations  shall  be  governed  by 
the  rules  of  article  1050.* 

Art.  1 198.  By  a  revocable  donation,  followed  by  the  tradition  of  the 
things  donated,  the  donee  acquires  the  rights  and  contracts  the  obliga- 
tions of  a  usufructuary. 

Nevertheless,  he  shall  not  be  obliged  to  give  the  bond  for  preservation 
and  restitution  required  of  usufructuaries,  unless  the  donor  shall  require 
it. 

745,  834. 

Art.  i  199.  Revocable  donations  under  a  singular  title  are  anticipated 
legacies,  and  are  subject  to  the  same  rules  as  legacies. 

On  the  other  hand,  if  the  testator  shall  give  during  his  lifetime  the 
enjoyment  of  the  thing  bequeathed  to  the  legatee,  the  legacy  is  a  re- 
vocable donation. 
i 
1008,  ion,  1 197,  1 162,  1242  pars.  2  and  3,  1243,  14.19  et  seq. 


*  The  citation  to  art.  1050  is' incorrect;  art.  1056  should  have  been  cited.  For 
this  reason  this  article  is  repealed  by  art.  45  of  law  57  of  1887,  and  replaced  by  art.  31 
of  the  same  law,  which  corrects  the  error. 


258 

Art.  i  200.  Revocable  donations,  including  legacies,  in  the  case  of  the 
preceding  paragraph,  shall  take  precedence  over  legacies  the  enjoyment 
of  which  has  not  been  given  to  the  legatees  during  the  life  of  the  testator, 
when  the  property  which  the  latter  shall  leave  at  his  death  is  not  suffi- 
cient to  cover  them  all. 

Art.  1 201 .  The  revocable  donation  of  all  of  the  property,  or  of  a  quota 
thereof,  shall  be  considered  as  an  institution  of  heir,  which  shall  be  effec- 
tive only  after  the  death  of  the  donor. 

However,  the  donee  of  all  the  property  or  of  a  quota  thereof  may 
exercise  the  rights  of  a  usufructuary  over  the  specific  things  which  may 
have  been  delivered  to  him. 

1464,  1465,  1466,  1008,  ion. 

Art.  1202.  Revocable  donations  lapse  by  the  mere  act  of  the  death 
of  the  donee  before  that  of  the  donor. 

Art.  1203.  Revocable  donations  are  confirmed  and  give  the  property 
of  the  object  donated,  by  the  mere  act  of  the  donor  dying  without  having 
revoked  them,  and  without  there  having  arisen  as  to  the  donee  any  cause 
of  incapacity  or  unworthiness,  sufficient  to  invalidate  an  inheritance  or 
legacy;  excepting  the  case  of  article  1 195,  par.  2. 

1258  par.  2,  1259  Par-  2- 

Art.  1204.  The  revocation  may  be  express  or  implied,  in  the  same 
manner  as  the  revocation  of  inheritances  or  legacies. 

1 193,  1208  par.  2. 

Art.  1205.  The  provisions  of  this  paragraph,  in  so  far  as  they  concern 
forced  assigns  (asignatarios  forzosos) ,  are  subject  to  the  exceptions  and 
modifications  which  will  be  stated  in  the  Title  Of  forced  assignments.* 


Chapter  8. 

Of  the  Right  of  Accretion.^ 

Art.  1 206.  If  one  object  should  be  left  to  two  or  more  assigns,  and  the 
portion  of  one  of  them,  which  on  account  of  his  absence  is  added  to  the 
portions  of  the  others,  it  is  said  to  accrue  thereto. 

1041,  1847,  1222. 

*  The  word  paragraph,  employed  at  the  beginning  of  this  article,  is  equivalent  to 
Chapter.     See  comment  to  art.  1 182. 

fSee  La.  Civil  Code,  arts.  1022  [1015]  to  1028  [1021]. 


259 

Art.  1207.  This  accretion  shall  not  take  place  between  the  assigns  of 
the  different  parts  or  quotas  into  which  the  testator  may  have  divided 
the  thing  assigned :  each  part  or  quota  shall  in  such  case  be  considered 
as  a  separate  object;  and  there  shall  be  no  right  of  accretion,  except  be- 
tween the  co-assigns  of  the  same  part  or  quota. 

If  an  object  be  left  to  two  or  more  persons  in  equal  parts,  the  right  of 
accretion  shall  exist. 

1841. 

Art.  1208.  The  right  of  accretion  shall  exist  whether  the  co-assigns 
are  called  in  the  same  clause  or  in  separate  clauses  of  the  same  testa- 
mentary instrument. 

If  the  call  be  made  in  two  different  instruments,  the  first  call  shall  be 
presumed  to  be  revoked  in  so  far  as  it  should  not  be  common  with  the 
subsequent  call. 

66,  1273  par.  2. 

Art.  1209.  The  joint  co-assigns  shall  be  considered  as  a  single  person 
in  order  to  participate  with  other  co-assigns ;  and  the  collective  person 
formed  by  the  former,  shall  not  be  considered  as  absent,  unless  all  of  them 
are  absent. 

By  joint  co-assigns  shall  be  understood  those  who  are  associated  by  a 
copulative  expression,  as  Peter  and  John,  or  included  in  a  collective  de- 
nomination, as  the  sons  of  Peter. 

Art.  1 2 10.  A  co-assign  may  preserve  his  own  portion  and  repudiate 
that  which  is  deferred  to  him  by  accretion ;  but  he  cannot  repudiate  the 
former  and  accept  the  latter. 

1 1 26. 

Art.  121 1.  The  portion  which  accrues  carries  with  it  all  its  charges, 
excepting  those  which  suppose  a  personal  quality  or  ability  on  the  part 
of  the  co-assign  who  is  absent. 

1 1 26. 


Art.  1212.  The  right  of  transmission  established  by  article  1014,  ex- 
cludes the  right  of  accretion. 

1222. 

Art.  1 2 13.  The  assigns  of  a  usufruct,  of  a  use,  of  a  habitation  or  of  a 
periodical  pension  preserve  the  right  of  accretion  while  they  are  in  the 


26o 

enjoyment  of  said  usufruct,  use  habitation  or  pension ;  and  none  of  these 
rights  is  extinguished  until  the  last  co-assign  is  absent.* 

832  par.  2,  865  par.  2. 

Art.  1214.  The  testator  may,  in  any  case,  prohibit  the  accretion. 

Chapter  9. 
Of  Substitutions. 

Art.  1 2 1 5.  A  substitution  is  simple  (vulgar)  or  in  trust  (fideicomisaria) . 

A  simple  substitution  is  that  where  an  assign  is  designated  to  take  the 
place  of  another  who  does  not  accept,  or  who,  before  the  assignment  is  de- 
ferred to  him,  becomes  absent  through  death,  or  through  another  cause 
which  extinguishes  his  eventual  right. 

An  assign  shall  not  be  considered  as  absent  when  he  has  accepted, 
unless  the  acceptance  be  invalidated. 

Art.  1 2 16.  A  substitution  expressly  made  to  supply  any  of  the  cases 
in  which  the  assign  may  be  absent,  shall  be  understood  as  made  for 
any  of  the  other  cases  in  which  he  may  be  absent ;  unless  the  testator 
shall  have  willed  otherwise.  ( 

Art.  1 2 17.  The  substitution  may  be  of  various  degrees,  as  when  a 
substitute  is  designated  for  the  direct  assign,  and  another  for  trie  first 
substitute. 

Art.  1 218.  One  may  be  substituted  for  a  number  and  a  number  for 
one. 

Art.  1 2 19.  If  three  or  more  assigns  are  mutually  substituted,  and  one 
of  them  is  absent,  the  portion  of  the  latter  shall  be  divided  among  the 
others  in  proportion  to  the  value  of  their  respective  assignments. 

Art.  1220.  The  substitute  of  a  substitute  who  shall  be  absent,  shall 
be  considered  as  called  in  the  same  cases  and  with  the  same  charges  as 
the  latter,  without  prejudice  to  what  the  testator  may  have  provided  in 
this  respect. 

Art.  i 22 1.  If  the  assign  should  be  the  legitimate  descendant  of  the 
testator,  the  legitimate  descendants  of  the  assign  are  not  thereby  con- 
sidered as  substituted  for  the  latter ;  unless  the  testator  shall  have  willed 
otherwise. 

Art.  1222.  The  right  of  transmission  excludes  that  of  substitution, 
and  that  of  substitution,  that  of  accretion. 

1212,  1014. 

Art.  1223.  Substitution  in  trust  is  that  in  which  a  cestui  que  trust  is 


" 


,    *The  Code  of  Chile  says:  "The  co-assigns  of  a  usufruct.     ..." 


26l 


called,  who  in  the  event  of  a  condition  becomes  the  absolute  owner  of 
that  which  another  person  held  as  fiduciary  property. 

Substitution  in  trust  is  governed  by  the  provisions  of  the  Title  Of 
Fiduciary  Property. 

Art.  i  224.  If  one  or  more  substitutes  be  designated  to  provide  for  the 
absence  of  the  cestui  que  trust,  these  substitutions  shall  be  considered 
as  simple,  and  shall  be  subject  to  the  provisions  of  the  preceding  articles. 

Neither  the  cestui  que  trust  in  the  first  place,  nor  any  substitute  called 
to  occupy  his  place,  shall  transmit  their  expectations  if  they  should  be- 
come absent. 

1012,  1019. 

Art.  1225.  The  substitution  shall  not  be  presumed  to  be  in  trust, 
unless  the  tenor  of  the  disposition  shall  manifestly  exclude  a  simple 
substitution. 


:62 


TITLE  V. 
Of  Forced  Assignments. 

Art.  1226.  Forced  assignments  are  those  which  the  testator  is  obliged 
to  make,  and  which  are  supplied  when  he  does  not  make  them,  even  to 
the  prejudice  of  the  express  testamentary  dispositions. 

Forced  assignments  are : 

1 .  The  support  due  by  law  to  certain  persons. 

2.  The  conjugal  portion. 

3.  The  legitimes. 

4.  The  betterments  of  a  quarter  {cuarta  de  mejoras)  in  the  succession 
of  the  legitimate  descendants. 

41 1,  1230,  1239,  1242  par.  3.     34  to  37  of  law  153  of  1887. 

Chapter  i. 

Of  Assignments  for  Support  which  are  Due  Certain  Persons. 

Art.  1227.  The  support  which  the  deceased  according  to  law  owed 
certain  persons,  charges  the  estate,  unless  the  testator  shall  have  im- 
posed this  obligation  upon  one  or  more  participants  in  the  succession. 

1016  No.  4,  1 155  par.  2. 

Art.  1228.  The  assigns  of  support  are  not  obliged  to  make  any  return 
whatsoever  by  reason  of  the  debts  or  charges  upon  the  patrimony  of  the 
deceased;  but  future  support  which  appears  out  of  proportion  to  the 
extent  of  the  net  patrimony  cannot  be  reduced. 

1418  par.  2,  419,  1229  par.  2. 

Art.  1229.  Assignments  for  support  to  persons  who  under  the  law  are 
not  entitled  to  support,  shall  be  imputed  to  that  portion  of  property  of 
which  the  deceased  could  freely  dispose. 

And  if  the  support  bequeathed  to  forced  assigns  should  be  larger  than 
is  proper  under  the  circumstances,  the  excess  shall  be  imputed  to  the 
aforesaid  property. 

Chapter  2. 

Of  the  Conjugal  Portion. 

Art.  1230.  The  conjugal  portion  is  that  part  of  the  patrimony  of  a 
deceased  person  which  the  law  assigns  to  the  surviving  spouse  who  does 
not  possess  what  is  necessary  for  his  adequate  support. 


263 

Art.  1 23 1.  Even  a  divorced  spouse  shall  be  entitled  to  the  conjugal 
portion,  unless  he  gave  rise  to  the  divorce  through  his  own  fault. 

166. 

Art.  1232.  This  right  shall  be  understood  to  exist  at  the  time  of  the 
death  of  the  other  spouse,  and  shall  not  lapse  either  in  whole  or  in  part 
by  the  acquisition  of  property  subsequently  by  the  surviving  spouse. 

1012.     34,  35,  37  of  law  153  of  1887. 

Art.  1233.  The  surviving  spouse  who  at  the  time  of  the  death  of  the 
other  spouse  had  no  right  to  a  conjugal  portion,  shall  not  acquire  it  after- 
wards by  the  fact  of  his  becoming  poor. 

Art.  1234.  If  the  surviving  spouse  should  have  property,  but  not  of  as 
much  value  as  the  conjugal  portion,  he  shall  be  entitled  only  to  the  bal- 
ance, as  a  conjugal  portion. 

Therefore,  to  the  conjugal  portion  shall  be  imputed  all  that  the  sur- 
viving spouse  may  be  entitled  to  under  any  other  title  in  the  succession 
of  the  deceased,  including  his  half  of  the  acquets  and  gains,  if  he  does  not 
renounce  it. 

1831,  1837. 

Art.  1235.  The  surviving  spouse  may,  at  his  option,  retain  what  he 
possesses  or  is  due  him,  renouncing  the  conjugal  portion,  or  demand  the 
conjugal  portion  upon  abandoning  his  other  property  and  rights. 

Art.  1236.  The  conjugal  portion  is  one-quarter  of  the  property  of  the 
deceased  person,  in  all  the  orders  of  succession,  excepting  in  that  of 
legitimate  descendants. 

If  there  be  such  descendants,  the  widower  or  widow  shall  be  counted 
among  the  children,  and  shall  receive  as  a  conjugal  portion  the  rigorous 
legitime  of  a  child. 

1016  No.  5,  1242,  1249,  1278.     86  of  law  153  of  1887. 

Art.  1237.  If  the  surviving  spouse  is  to  receive  in  the  succession  of  the 
deceased,  under  the  title  of  a  donation,  inheritance  or  legacy,  more  than 
he  is  entitled  to  as  a  conjugal  portion,  the  surplus  shall  be  imputed  to 
that  part  of  the  property  of  which  the  deceased  could  freely  dispose. 

Art.  1238.  The  spouse  to  whom  shall  have  fallen  under  a  universal 
title  on  account  of  his  conjugal  portion  some  part  in  the  succession  of 
the  deceased,  shall  be  liable  in  proportion  to  this  part,  as  the  heirs  are  in 
their  respective  quotas. 

If  one-half  the  acquets  and  gains  should  be  imputed  to  said  portion, 
the  special  liability  to  which  it  is  subject,  according  to  the  provisions  of 
the  Title  Of  the  Conjugal  Partnership,  shall  subsist. 


264 

In  the  rest  which  the  widower  or  widow  may  receive,  slsjl  conjugal 
portion,  he  or  she  shall  have  only  the  subsidiary  liability  of  legatees. 

"55,  J833>  H"i  II62  Par-  2- 

Chapter  3. 

Of  Legitimes  and  Betterments* 

Art.  1239.  Legitime  is  that  portion  of  the  property  of  a  deceased  per- 
son which  the  law  awards  to  certain  persons  called  legitimaries  or  forced 
legitimarios. 

Legitimaries  are,  consequently,  heirs. 

toii. 

Art.  1 240.  The  following  are  forced  heirs : 

1 .  The  legitimate  children  personally,  or  represented  by  their  legiti- 
mate posterity. 

2.  The  legitimate  ascendants. 

3.  The  natural  children  personally,  or  represented  by  their  legitimate 
posterity. 

4.  The  natural  parents. 

1040,  1041,  1043,  282.     34,  36,  85,  86  of  law  153  of  1887. 

Art.  1 24 1.  The  forced  heirs  participate  and  are  excluded  and  repre- 
sented according  to  the  order  and  rules  governing  intestate  succession. 

1040  etseq.,     85,  86,  87,  of  law  153  of  1887. 

Art.  1242.  One-half  the  property,  after  the  deductions  and  additions 
indicated  in  article  10 16,  and  those  stated  below,  shall  be  divided  per 
capita  or  per  stirpes  among  the  respective  forced  heirs,  according  to  the 
rules  governing  intestate  succession ;  what  falls  to  each  one  in  this  divi- 
sion, will  be  his  rigorous  legitime. 

Should  there  be  no  legitimate  descendants  entitled  to  succeed,  the 
remaining  half  is  the  portion  of  the  property  of  which  the  deceased  could 
freely  dispose. 

If  there  be  such  descendants,  the  estate,  after  the  said  deductions  and 
additions,  shall  be  divided  into  four  parts :  two  of  them,  that  is  to  say  one- 
half  the  estate,  for  the  rigorous  legitimes;  another  quarter,  for  the  better- 
ments with  which  the  deceased  may  have  wished  to  favor  one  or  more 
of  his  legitimate  descendants,  whether  forced  heirs  or  not ;  and  another 
quarter  disposable  of  at  his  will. 

See  citations  to  preceding  article  and  1277  par.  2,  1370,  1432,  282. 

*See  La.  Civil  Code,  arts.  1493  [1480]  et  scq. 


265 

Art.  1243.  In  order  to  compute  the  quarters  referred  to  in  the  pre- 
ceding article,  all  revocable  and  irrevocable  donations  made  by  way  of 
legitimes  or  betterments,  according  to  the  value  the  things  donated  may 
have  had  at  the  time  of  their  delivery,  shall  be  added  in  an  imaginary 
manner  to  the  net  estate,  as  also  the  deductions  which,  in  accordance 
with  article  1 234,  may  be  made  from  the  conjugal  portion. 

The  quarters  above  referred  to  apply  to  this  imaginary  estate. 

10 1 6  last  par.,  1199,  1200  et  seq.,  1244  to  1247. 

Art.  1244.  If  one  who  had  at  the  time  forced  heirs,  should  have  made 
donations  inter  vivos  to  other  persons,  and  the  value  of  all  of  them  to- 
gether should  exceed  one-fourth  of  the  sum  formed  by  this  value  and 
exceed  the  imaginary  estate,  the  forced  heirs  shall  have  the  right  to  have 
this  excess  added  also  in  an  imaginary  manner  to  the  estate,  for  the 
computation  of  their  legitimes  and  betterments. 

1443,  1 199,  1200. 

Art.  1245.  If  the  excess  be  so  great  that  it  not  only  absorbs  that  part 
of  the  property  of  which  the  deceased  could  freely  dispose,  but  also  affects 
the  rigorous  legitimes,  or  the  quarter  betterments,  the  forced  heirs  shall 
be  entitled  to  recover  the  excess  donated,  proceeding  against  the  donees 
in  the  inverse  order  of  the  dates  of  the  donations,  that  is,  beginning  with 
the  most  recent. 

The  insolvency  of  a  donee  will  not  be  a  charge  upon  the  others. 

1482. 

Art.  1246.  The  remainder  only  shall  be  considered 'as  a  donation, 
after  having  deducted  the  pecuniary  charge  to  which  the  assignment  may 
be  subject. 

Nor  shall  moderate  gifts  be  taken  into  consideration,  which  are  author- 
ized by  custom,  on  certain  days  and  in  certain  cases,  nor  gifts  of  handi- 
work of  little  value. 

13  of  law  153  of  1887. 

Art.  1 247. If  the  sum  of  that  which  has  been  given  by  reason  of  a  legi- 
time does  not  reach  one-half  the  imaginary  estate,  the  deficit  shall  be 
taken  from  the  property,  with  preference  to  any  other  application. 

Art.  1 248.  If  a  forced  heir  does  not  take  all  or  part  of  his  legitime,  on 
account  of  incapacity,  unworthiness  or  disinherison,  or  because  he  has 
repudiated  it,  and  has  no  descendants  having  the  right  of  representation, 
said  whole  or  part  shall  be  added  to  the  half  set  aside  for  the  forced  heirs, 
and  shall  contribute  to  form  the  rigorous  legitimes  of  the  others,  and  the 
conjugal  portion,  in  the  case  of  article  1236  par.  2. 


266 


The  deductions  which  may  be  made  according  to  article  1234  from 
the  conjugal  portion,  in  the  preceding  case,  shall  return  in  the  same 
manner  to  the  half  for  the  forced  heirs. 

1044  par.  2,  104 1. 

Art.  1249.  That  portion  of  the  property  of  which  the  testator  could 
dispose  as  betterments,  or  without  restriction,  which  he  has  not  disposed 
of,  or  if  he  has,  the  disposition  has  remained  without  effect,  accrues  to 
the  rigorous  legitimes. 

When  the  rigorous  legitimes  are  thus  increased,  they  are  called  effective 
legitimes. 

This  accretion  does  not  benefit  the  surviving  spouse  in  the  case  of  arti- 
cle 1236,  par.  2. 

1052. 

Art.  1250.  The  rigorous  legitime  is  not  susceptible  of  any  condition, 
term,  mode  or  charge  whatsoever. 

Upon  the  rest  which  may  have  been  left  or  is  left  the  forced  heirs, 
excepting  under  the  form  of  donations  inter  vivos,  the  testator  may 
impose  the  charges  he  desires,  without  prejudice  to  the  provisions  of 
article  1253. 

1028  par.  3,  1262  par.  2. 

Art.  1 25 1.  If  what  has  been  given  or  is  given  by  reason  of  legitimes, 
exceeds  one-half  the  imaginary  estate,  it  shall  be  imputed  to  the  quarter 
of  betterments,  without  prejudice  to  being  divided  into  equal  parts 
among  the  forced  heirs ;  but  to  the  exclusion  of  the  surviving  spouse,  in 
the  case  of  article  1236,  par.  2. 

1243,  1242. 

Art.  1252.  If  the  betterments  (including  the  excess  referred  to  in  the 
preceding  article  in  a  proper  case)  should  exceed  a  fourth  part  of  the 
imaginary  estate,  this  excess  shall  be  imputed  to  the  remaining  fourth 
part,  with  preference  to  any  object  of  free  disposition,  to  which  the 
deceased  may  have  destined  it. 

1243,  1242. 

Art.  1253.  The  donor  or  testator  may  make  the  distribution  he  wishes 
among  his  legitimate  descendants  of  the  betterment  quarter;  he  may, 
therefore,  assign  to  one  or  more  of  his  legitimate  descendants  the  entire 
quarter,  to  the  exclusion  of  the  others. 


267 

The  charges  imposed  uupon  the  participants  in  the  betterment  quar- 
ter, shall  always  be  in  favor  of  one  or  more  of  the  other  legitimate  de- 
scendants. 

1242. 

Art.  1254.  If  there  should  be  no  manner  of  completing  the  legitimes 
and  betterments,  calculated  in  accordance  with  the  preceding  articles, 
both  shall  be  reduced  pro  rata. 

Art.  1255.  He  who  owes  a  legitime  may,  in  any  case,  fix  the  specific 
things  in  which  its  payment  is  to  be  made ;  but  he  cannot  delegate  thfs 
power  to  any  person,  nor  appraise  the  value  of  said  specific  things. 

1375- 

Art.  1256.  All  legacies,  all  donations,  whether  revocable  or  irrevoca- 
ble, made  to  a  forced  heir  who  had  at  the  time  the  quality  of  such,  shall 
be  imputed  to  his  legitime,  unless  it  shall  appear  from  the  testament,  or 
in  the  respective  instrument  or  subsequent  authentic  act,  that  the 
legacy  or  donation  was  a  betterment. 

Nevertheless,  the  expense  of  the  education  of  a  descendant  shall  not 
be  taken  into  consideration  in  the  computation  of  the  legitimes,  nor  of 
the  betterment  quarter,  nor  of  the  disposable  quarter,  even  though  they 
have  been  incurred  as  so  imputable. 

Nor  shall  there  be  considered  in  such  imputations  the  presents  made 
to  a  descendant  on  the  occasion  of  his  marriage,  nor  other  customary 
presents. 

1800.     13  of  law  153  of  1887. 

Art.  1257.  The  accumulation  of  what  has  been  given  irrevocably  by 
reason  of  legitimes  or  betterments,  for  the  computation  prescribed  by 
articles  1242  et  seq.,  does  not  benefit  the  hereditary  creditors  nor  the 
assigns  who  are  so  under  any  title  other  than  a  legitime  or  betterment. 

Art.  1258.  If  a  revocable  or  irrevocable  donation  be  made,  under  the 
title  of  a  legitime,  to  a  person  who  is  not  at  the  time  a  forced  heir  of  the 
donor,  and  the  donee  does  not  subsequently  acquire  the  condition  of  a 
forced  heir,  the  donation  shall  be  resolved. 

The  same  shall  be  observed  if  the  donation  shall  have  been  made  as  a 
legitime  to  one  who  was  at  the  time  a  forced  heir,  but  subsequently 
ceased  to  be  such,  through  incapacity,  unworthiness,  disinherison  or 
repudiation,  or  through  the  appearance  of  another  forced  heir  having  a 
better  right. 

If  the  donee,  being  a  legitimate  descendant,  is  lacking  on  account  of 


268 

any  of  these  causes,  the  donations  which  are  imputable  to  his  legitime 
shall  be  imputed  to  that  of  his  legitimate  descendants. 

1203. 

Art.  1259.  ^  a  revocable  or  irrevocable  donation  be  made  as  a  bet- 
terment, to  a  person  who  was  believed  to  be  a  legitimate  descendant  of 
the  donor,  and  was  not  so  in  fact,  the  donation  shall  be  resolved. 

The  same  shall  take  place  if  the  donee,  who  is  a  legitimate  descendant, 
has  become  absent  through  incapacity,  un worthiness,  disinherison,  or 
repudiation. 

1512,  1203. 

Art.  1260.  Such  donations  or  testamentary  assignments  as  a  deceased 
person  may  have  made  to  another  shall  not  be  imputed  to  the  legitime 
of  a  person,  excepting  in  the  case  of  the  third  paragraph  of  article  1258. 

Art.  1 261 .  The  disbursements  made  for  the  payment  of  the  debts  of  a 
forced  heir  who  is  a  legitimate  descendant,  shall  be  imputed  to  his 
legitime,  but  only  in  so  far  as  they  were  applied  to  the  payment  of  said 
debts. 

If  the  deceased  shall  have  expressly  declared,  by  an  act  inter  vivos  or 
in  a  testament,  his  desire  that  said  expenses  be  not  imputed  to  the  legi- 
time, they  shall  in  such  case  be  considered  a  betterment. 

If  the  deceased,  in  the  case  of  the  preceding  paragraph,  should  have 
bequeathed  to  the  said  forced  heir  as  a  betterment,  any  quota  of  the  in- 
heritance or  a  sum  of  money,  they  shall  be  imputed  to  said  quota  or  sum ; 
without  prejudice  to  the  excess  being  applied  as  a  betterment  or  in  the 
manner  the  deceased  may  have  ordered. 

1414. 

Art.  1262.  If  the  deceased  shall  have  promised  in  a  public  instrument 
inter  vivos,  to  a  legitimate  descendant,  who  was  a  forced  heir  at  the  time, 
not  to  donate  or  assign  by  testament  any  part  of  the  quarter  composing 
the  betterments,  and  should  subsequently  break  his  promise,  said  legiti- 
mate descendant  shall  have  the  right  to  force  the  assigns  of  said  quarter 
to  reimburse  him  the  amount  he  would  have  received  through  the  fulfill- 
ment of  the  promise  in  proportion  to  the  benefit  accruing  to  them  through 
its  violation. 

Any  other  stipulations  upon  the  future  succession,  between  a  forced 
heir  and  he  who  owes  him  the  legitime,  shall  be  null  and  of  no  value. 

161 2  par.  1,  1250,  1283  par.  3,  1520,  1526. 

Art.  1263.  The  fruits  of  the  things  donated  revocably  or  irrevocably, 
as  a  legitime  or  betterment,  during  the  life  of  the  donor,  belong  to  the 


269 

donee  from  the  time  of  their  delivery,  and  do  not  figure  in  the  hereditary 
estate;  and  if  the  things  donated  shall  not  have  been  delivered  to  the 
donee,  the  fruits  shall  not  belong  to  him  until  after  the  death  of  the  donor, 
unless  the  latter  shall  have  made  an  irrevocable  donation  in  an  authentic 
manner,  not  only  of  the  ownership  but  also  of  the  usufruct  of  the  things 
donated. 

716,  718,  1176. 

Art.  1264.  If  the  donee  of  specific  things,  which  are  to  be  imputed  to 
his  legitime  or  betterment,  should  definitely  receive  a  sum  not  under  the 
value  of  said  specific  things,  he  shall  be  entitled  to  retain  them  and  de- 
mand the  balance,  and  cannot  force  the  other  assigns  to  change  the 
things,  or  give  him  their  value  in  money. 

And  if  he  should  definitely  receive  a  sum  lower  than  the  value  of  the 
said  specific  things,  and  should  be  obliged  to  pay  a  balance,  he  may,  at 
his  will,  make  this  payment  in  money,  or  restore  one  or  more  of  said 
things,  and  demand  the  corresponding  pecuniary  compensation  for  such 
irnount  as  the  actual  value  of  the  things  which  he  returns  exceeds  the 
balance  which  he  owes. 

1243,  1256. 

Chapter  4. 

Of  Disinherison. 

Art.  1265.  Disinherison  is  a  testamentary  disposition  ordering  that  a 
forced  heir  be  deprived  of  all  or  of  a  part  of  his  legitime. 

A  disinherison  which  does  not  conform  to  the  rules  stated  in  this  Title, 
shall  not  be  valid. 

34  par.  2,  and  35  of  law  153  of  1887. 

Art.  1266.  A  descendant  can  be  disinherited  for  the  following  causes 
only: 

1.  For  having  committed  a  grave  injury  against  the  testator  in  his 
person,  honor  or  property,  or  the  person,  honor  or  property  of  his  spouse, 
or  of  any  of  his  legitimate  ascendants  or  descendants. 

2.  For  not  having  assisted  him  when  in  a  state  of  insanity  01  destitu- 
tion, when  able  to  do  so. 

3.  For  having  used  force  or  fraud  to  prevent  him  from  making  a  will. 

4.  For  having  married  without  the  consent  of  an  ascendant,  or  without 
that  of  the  court  in  its  place,  if  obliged  to  secure  it. 

5.  For  having  committed  a  crime  to  which  any  of  the  penalties  men- 
tioned in  No.  4  of  article  315,  may  have  been  applied,  or  for  having  aban- 
doned one's  self  to  vices  or  exercised  infamous  trades ;  unless  it  be  proved 


•    270 

that  the  testator  did  not  interest  himself  in  the  education  of  the  person 
disinherited. 
Ascendants  may  be  disinherited  for  any  of  the  first  three  causes. 

1485,  1685  No.  1,  1025,  124,  1268. 

Art.  1267.  None  of  the  causes  of  disinherison  mentioned  in  the  pre- 
ceding article  shall  avail,  if  it  be  not  specifically  expressed  in  the 
testament,  and  if,  in  addition  it  shall  not  have  been  proved  judicially 
during  the  life  of  the  testator ;  or  if  the  persons  interested  in  the  disin- 
herison, should  not  prove  it  after  his  death. 

Nevertheless,  such  proof  shall  not  be  necessary,  when  the  person  dis- 
inherited does  not  demand  his  legitime  within  four  years  next  after  the 
opening  of  the  succession ;  or  within  four  years  from  the  date  upon  which 
his  incapacity  to  administer  ceased,  if  at  the  time  of  the  opening  of  the 
succession,  he  shall  have  been  incapable. 

1274. 

Art.  1268.  The  effects  of  the  disinherison,  if  the  disinheritor  does  not 
expressly  limit  them,  extend  not  only  to  the  legitimes,  but  to  all  assign- 
ments mortis  causa,  and  to  all  the  donations  which  the  testator  may 
have  made  the  disinherited. 

But  they  do  not  extend  to  necessary  support,  excepting  in  cases  of 
atrocious  injury  (outrage). 

125  par.  2,  414  par.  3,  1036,  414  pars.  3  and  4. 

Art.  1269.  The  disinherison  may  be  revoked,  as  other  testamentary 
dispositions,  and  the  revocation  may  be  total  or  partial ;  but  it  shall  not 
be  considered  as  impliedly  revoked  if  there  has  been  a  reconciliation, 
nor  can  the  person  disinherited  be  permitted  to  prove  that  there  was  an 
intention  to  revoke  it. 


271 


TITLE  VI. 
Of  the  Revocation  and  Amendment  of  a  Testament. 

Chapter  i. 
Of  the  Revocation  of  a  Testament. 

Art.  1270.  A  testament  that  has  been  validly  executed  cannot  be 
invalidated  except  by  the  revocation  of  the  testator. 

Nevertheless,  privileged  testaments  lapse  without  the  necessity  of 
revocation,  in  the  cases  prescribed  by  law. 

The  revocation  may  be  total  or  partial. 

1093,  IIGI  Par-  2>  I1Q9>  1 1 10. 

Art.  1 27 1.  A  solemn  testament  may  be  expressly  revoked  in  whole 
or  in  part,  by  a  solemn  or  privileged  testament. 

But  the  revocation  made  by  a  privileged  testament  shall  lapse  with  the 
testament  containing  it,  and  the  former  one  shall  subsist. 

Art.  1272.  If  a  testament  which  revokes  an  earlier  testament  is  in  its 
turn  revoked,  the  first  testament  does  not  revive  by  such  revocation, 
unless  the  testator  should  provide  otherwise. 

Art.  1273.  A  testament  is  not  revoked  impliedly  in  all  its  parts  by 
the  existence  of  one  or  more  subsequent  ones. 

Subsequent  testaments  which  do  not  expressly  revoke  the  preceding 
ones,  shall  leave  such  provisions  of  the  latter  as  are  not  incompatible  or 
contrary  to  the  later  ones,  in  force. 

72,1208.     2  and  3  of  law  153  of  1887. 


Chapter  2. 
Of  the  Amendment  of  Testaments. 

Art.  1274.  Forced  heirs  who  have  not  been  left  by  the  testator  what 
is  due  them  under  the  law,  shall  have  a  right  to  the  amendment  of  the 
testament  in  their  favor,  and  may  institute  proceedings  for  amendment 
(they  or  the  persons  to  whom  they  may  have  transferred  their  rights) , 
within  four  years  from  the  day  on  which  they  received  notice  of  the 
testament  and  of  their  quality  of  forced  heirs. 

If  the  forced  heir,  at  the  time  of  the  opening  of  the  succession,  did  not 
have  the  administation  of  his  property,  the  action  for  amendment  will 


,272 

not  prescribe  with  regard  to  him  before  the  expiration  of  four  years  from 
the  date  upon  which  he  shall  assume  said  administration. 

1240,  1372  par.  2,  1267  par.  2. 

Art.  1275.  In  general,  what  is  due  by  law  to  the  forced  heirs,  and 
what  they  have  the  right  to  demand  through  an  action  for  amendment, 
is  their  rigorous  legitime  or  their  effective  legitime,  in  a  proper  case. 

1242,  1 249  par.  2,  1262,  1283  last  par. 

A  forced  heir  who  has  been  unjustly  disinherited  shall,  in  addition, 
have  the  right  that  the  donations  inter  vivos  comprised  in  the  disin- 
herison subsist. 

1242,  1249  par.  2. 

Art.  1276.  The  fact  of  a  forced  heir  having  been  passed  in  silence, 
must  be  construed  as  an  institution  of  heir  in  his  legitime. 

He  shall  retain,  in  addition,  the  revocable  donations  which  the  testator 
may  not  have  revoked. 

Art.  1277.  The  forced  heirs  of  the  same  order  and  degree  shall  con- 
tribute to  the  formation  or  completion  of  what  is  due  the  plaintiff  by 
reason  of  his  legitime. 

If  he  who  has  legitimate  descendants  shall  dispose  of  any  part  of  the 
quarter  comprising  the  betterments,  in  favor  of  other  persons,  the  forced 
heirs  shall  also  have  the  right  to  have  the  testament  amended  in  this 
respect  and  that  said  part  be  adjudicated  to  them. 

1242  par.  3. 

Art.  1278.  The  surviving  spouse  shall  have  a  right  of  action  for  amend- 
ment in  order  to  make  up  her  conjugal  portion,  according  to  the  pre- 
ceding rules. 

1236. 


273 


TITLE  \1I. 

Of  the  Opening1  of  the  Succession,  and  of  its  Acceptance,  Re- 
pudiation and  Inventory. 

Chapter  i. 
General  Rules. 

Art.  1279.  From  the  moment  a  succession  is  opened,  all  persons  hav- 
ing an  interest  therein,  or  who  are  presumed  to  have  such  interest,  may 
demand  that  the  movables  and  papers  of  the  succession  be  kept  under 
lock  and  key  and  sealed  until  a  formal  inventory  of  the  property  and  of 
the  hereditary  effects  is  made. 

The  domestic  furniture  of  quotidian  use  shall  not  be  kept  under  lock 
and  key  and  sealed ;  but  a  list  thereof  shall  be  made. 

The  care  and  the  affixing  of  seals  must  be  made  under  the  direction 
of  the  Judge,  with  the  legal  formalities. 

1012,  471,  472,  1310,  1312,  1341,  1822. 

Art.  1280.  If  the  property  of  the  succession  should  be  situated  in 
different  places,  the  Judge  before  whom  the  succession  may  have  been 
opened  shall,  at  the  instance  of  any  of  the  heirs  or  creditors,  address 
orders  or  letters  rogatory  to  the  judges  of  the  places  where  such  property 
may  be  situated,  in  order  that  they  may  provide  for  their  care  and  seal- 
ing, until  the  corresponding  inventory  is  made,  in  a  proper  case. 

Art.  1 28 1.  The  cost  of  the  care  and  the  affixing  of  seals,  and  of  the 
inventories,  shall  be  a  charge  upon  all  the  property  composing  the  suc- 
cession, unless  they  affect  only  one  portion  thereof,  in  which  case  they 
shall  be  a  charge  upon  such  part  only. 

1016  No.  1. 

Art.  1282.  Every  assign  may  freely  accept  or  repudiate. 

Persons  not  having  the  free  administration  of  their  property  are  ex- 
cepted, who  cannot  accept  or  repudiate  except  through  or  with  the  con- 
sent of  their  legal  representatives. 

They  are  forbidden  to  accept  by  themselves,  even  under  the  benefit 
of  inventory. 

A  married  woman,  however,  may  accept  or  repudiate  with  judicial 
authorization,  in  the  absence  of  that  of  the  husband,  the  provisions  of 
the  last  paragraph  of  article  191  being  observed. 

182,  183,  486,  1293,  !3o7. 


274 

Art.  1283.  No  assignment  can  be  accepted  until  after  it  shall  have 
been  deferred. 

But  after  the  death  of  the  person  whose  succession  is  involved,  any 
assignment  may  be  repudiated,  even  though  it  be  conditional  and  the 
condition  be  pending. 

The  permission  given  by  a  forced  heir  to  the  person  who  owes  the 
legitime  to  testate  without  considering  it,  shall  be  considered  an  un- 
timely repudiation  and  shall  have  no  value  whatsoever. 

1013  par.  2,  1470  par.  2,  1520,  1250,  1262  par.  2,  1526. 

Art.  1284.  A  conditional  acceptance  or  repudiation  cannot  be  made, 
nor  one  to  or  from  a  certain  day. 

Art.  1285.  One  part  or  quota  of  the  assignment  cannot  be  accepted, 
and  the  remainder  repudiated. 

But  if  the  assignment  made  to  a  person  is  transmitted  to  his  heirs, 
according  to  article  10 14,  each  of  the  latter  may  accept  or  repudiate 
his  quota. 

Art.  1286.  One  assignment  may  be  accepted  and  another  repudiated ; 
but  an  assignment  subject  to  a  charge  cannot  be  repudiated  and  the 
others  accepted,  unless  it  be  deferred  separately,  by  right  of  accretion  or 
of  transmission  or  of  simple  substitution  or  substitution  in  trust,  or  unless 
the  assign  shall  have  been  granted  the  power  to  repudiate  it  separately. 

135  of  law  153  of  1887. 

Art.  1287.  If  an  assign  sell,  donate,  or  transfer,  in  any  manner,  to 
another  person,  the  object  which  may  have  been  deferred  to  him,  or  the 
right  to  succeed  thereto,  it  shall  be  understood  thereby  that  he  accepts 
it. 

66,  1298,  1299,  1301,  1309. 

Art.  1288.  An  heir  who  has  removed  effects  belonging  to  a  succes- 
sion, loses  the  power  to  repudiate  the  inheritance,  and  notwithstand- 
ing his  repudiation  he  shall  remain  the  heir;  but  he  shall  have  no  part 
whatsoever  in  the  objects  removed. 

A  legatee  who  has  removed  objects  belonging  to  a  succession,  loses 
any  rights  which  as  a  legatee  he  may  have  had  in  said  objects,  and  not 
having  the  ownership  thereof,  he  shall  be  obliged  to  return  twice  as 
much. 

Both  shall,  furthermore,  be  criminally  subject  to  the  penalties  affixed 
to  the  crime. 

1313,1301,  1357,  1824. 


275 

Art.  1289.  Every  assign  shall  be  obliged,  upon  a  demand  by  any 
person  interested,  to  declare  whether  he  accepts  or  repudiates ;  and  he 
shall  make  this  statement  within  forty  days  next  after  the  demand. 
In  the  event  of  the  absence  of  the  assign,  or  if  the  property  be  situated 
at  a  distance,  or  for  any  other  serious  reason,  the  Judge  may  extend 
this  period ;  but  never  for  more  than  one  year. 

During  this  period  every  assign  shall  have  the  right  to  examine  the 
object  assigned;  he  may  request  the  taking  of  such  judicial  measures 
for  preservation  as  are  proper ;  and  he  shall  not  be  under  the  obligation 
to  pay  any  hereditary  or  testamentary  debt;  but  the  executor  or  cura- 
tor of  a  vacant  inheritance  shall,  in  a  proper  case,  be  under  such  obli- 
gation. 

An  heir,  during  this  term,  may  also  inspect  the  accounts  and  papers 
of  the  succession. 

If  an  absent  assign  should  not  enter  an  appearance,  in  person  or 
through  his  legal  representative,  in  due  time,  a  curator  ad  bona  to  repre- 
sent him  and  to  accept  for  him  under  the  benefit  of  inventory  shall  be 
appointed. 

578,  1538,  1383  last  par. 

Art.  i  290.  An  assign  who  is  tardy  in  declaring  whether  he  accepts  or 
repudiates,  shall  be  understood  to  repudiate. 

66,  1292,  1298,  1299. 

Art.  1 29 1.  An  acceptance,  after  having  been  made  with  legal  requisites 
cannot  be  rescinded,  unless  it  shall  have  been  obtained  by  force  or  fraud, 
and  in  the  case  of  lesion  beyond  moiety  {lesion  grave),  by  virtue  of  tes- 
tamentary dispositions  unknown  at  the  time  of  its  acceptance. 

This  rule  applies  even  to  the  assigns  who  do  not  have  the  free  admin- 
istration of  their  property. 

By  a  lesion  beyond  moiety  shall  be  understood  that  which  diminishes 
the  total  value  of  the  assignment  by  more  than  one-half. 

1838  par.  2,  1947,  1508,  1294. 

Art.  1292.  The  repudiation  is  not  presumed  of  right  excepting  in  the 
cases  prescribed  by  law. 

66. 

Art.  1293.  Those  who  do  not  have  the  free  administration  of  their 
property  cannot  repudiate  an  assignment  under  a  universal  title,  nor 
an  assignment  of  real  or  personal  property  valued  at  more  than  one 
thousand  pesos,  without  judicial  authorization,  after  an  investigation. 

The  husband  cannot  repudiate  an  assignment  deferred  to  his  wife 


276 

without  her  consent,  if  she  be  capable  of  giving  it,  or  without  the  author- 
ity of  the  court,  in  place  thereof. 

If  the  repudiation  be  made  in  any  other  manner,  it  shall  be  null,  and 
the  wife  shall  be  entitled  to  be  indemnified  by  the  husband  for  all 
damage ;  any  right  of  action  against  third  persons  being  reserved. 

486,  489,  182,  1282. 

Art.  1294.  No  person  shall  be  entitled  to  have  his  repudiation  re- 
scinded, unless  the  person  himself,  or  his  legitimate  representative,  shall 
have  been  induced  by  force  or  fraud  to  repudiate. 

1838  par.  2,  1508,  1 29 1. 

Art.  1295.  The  creditors  of  a  person  who  repudiates  to  the  prejudice 
of  their  rights,  may  seek  authorization  from  the  court  to  accept  for  the 
debtor.  In  such  case  the  repudiation  is  rescinded  only  in  favor  of  the 
creditors,  and  to  the  extent  of  their  credits ;  and  it  subsists  as  to  the 
remainder. 

1668,  862  par.  2,  1441,  1451  par.  2,  2491,  1397. 

Art.  1 296.  The  effects  of  the  acceptance  or  repudiation  of  an  inheri- 
tance retroact  to  the  moment  that  the  latter  shall  have  been  deferred. 
The  same  applies  to  legacies  of  specific  things. 

1013  par.  2. 

Chapter  2. 
Special  Rules  Relating  to  Inheritances. 

Art.  1297.  If  fifteen  days  after  the  opening  of  the  succession  the  in- 
heritance or  a  quota  thereof  shall  not  have  been  accepted,  and  if  there 
be  no  executor  to  whom  the  testator  shall  have  conferred  the  seizin  of 
the  property,  who  shall  have  accepted  the  trust,  the  Judge,  at  the  instance 
of  the  surviving  spouse,  or  of  any  of  the  relatives  or  dependents  of  the 
.  deceased,  or  of  another  person  interested  therein,  or  ex  proprio  motu, 
shall  declare  the  inheritance  vacant ;  this  declaration  shall  be  inserted 
in  the  official  newspaper  of  the  Territory,  if  there  be  any;  and  by  an- 
nouncements which  shall  be  posted  in  three  of  the  most  frequented 
places  of  the  district  in  which  the  greater  part  of  the  hereditary  prop- 
erty is  situated,  and  in  that  of  the  last  domicile  of  the  deceased;  and 
thereupon  a  curator  to  the  vacant  inheritance  shall  be  appointed. 

If  there  be  two  or  more  heirs,  and  one  of  them  shall  accept,  he  shall 
have  the  administration  of  all  the  hereditary  property  pro  indiviso,  after 
a  formal  inventory;  and  upon  his  co-heirs  successively  accepting,  and 


277 

subscribing  the  inventory,  they  shall  take  part  in  the  administration. 
Until  they  have  accepted  all  the  powers  of  the  heir  or  heirs  who  ad- 
minister shall  be  the  same  as  those  of  curators  to  the  vacant  inheritance ; 
but  they  shall  not  be  obliged  to  give  bond,  unless  there  should  be  fear 
that  under  their  administration  the  property  may  be  endangered.* 

IOI2,  1328,  1353,  569,  575,  465. 

Art.  1298.  The  acceptance  of  an  inheritance  may  be  express  or  im- 
plied. It  is  express  when  the  title  of  heir  is  taken;  and  it  is  implied, 
when  the  heir  performs  an  act  which  necessarily  supposes  his  intention 
of  accepting,  and  which  he  would  not  have  had  the  right  to  perform  but 
in  his  quality  of  heir. 

66,  1287,  1290,  1506  par.  2,  1300,  1301. 

Art.  1299.  It  shall  be  understood  that  a  person  assumes  the  title  of 
heir,  when  he  does  so  in  a  public  or  private  instrument,  obligating  him- 
self as  such  heir,  or  in  a  judicial  proceeding. 

66,  1287. 

Art.  1300.  Purely  conservative  acts,  those  of  inspection  and  urgent 
provisional  administration,  are  not  acts  which  by  themselves  suppose 
the  acceptance. 

Art.  1 30 1.  The  alienation  of  any  hereditary  effects,  even  for  an  object 
of  urgent  administration,  is  an  act  of  heirship,  if  it  has  not  been  author- 
ized by  the  Judge,  on  the  petition  of  the  heir,  the  latter  stating  that  it  is 
not  his  intention  to  obligate  himself  as  such. 

1288,66. 

Art.  1302.  He  who  performs  an  act  of  heirship,  without  a  previous 
formal  inventory,  succeeds  to  all  the  transmissible  obligations  of  the 
deceased,  in  proportion  to  his  hereditary  quota,  even  though  they  im- 
pose upon  him  a  charge  exceeding  the  value  of  the  property  which  he 
inherits. 

A  formal  inventory  having  first  been  made,  he  shall  enjoy  the  benefit 
of  inventory. 

1298,  1692,  2507,  1304. 

Art.  1303.  He  who  at  the  instance  of  a  hereditary  or  testamen- 
tary creditor  shall  have  been  judicially  declared  the  heir,  or  adjudged  as 

*This  paragraph  states  incorrectly  "  Until  they  have  accepted  all  the  powers  of 
the  heir  .  .  ."  The  Code  of  Chile  says:  "Until  all  have  accepted,  the  powers  of 
the  heir     .     .     .     ." 


278 

such,  shall  be  understood  to  be  such  with  regard  to  the  other  creditors, 
without  the  necessity  of  new  proceedings. 

The  same  rule  shall  apply  to  the  judicial  declaration  of  having  ac- 
cepted, purely  and  simply,  or  under  the  benefit  of  inventory. 

Chapter  3. 

Of  the  Benefit  of  Inventory  * 

Art.  1304.  The  benefit  of  inventory  consists  in  not  making  the  heirs 
who  accept  liable  for  the  hereditary  or  testamentary  obligations,  beyond 
the  aggregate  value  of  the  property  which  they  have  inherited. 

1302,  1314  etseq.,  141 1,  1435,  1682,  1728,  2507. 

Art.  1305.  If  of  a  number  of  co-heirs,  some  wish  to  accept  under  the 
benefit  of  inventory  and  others  not,  all  of  them  shall  be  obliged  to  accept 
under  the  benefit  of  inventory. 

Art.  1306.  The  testator  cannot  prohibit  an  heir  from  accepting  under 
the  benefit  of  inventory. 

Art.  1307.  The  inheritances  of  the  fisc  and  of  all  public  corporations 
and  establishments,  must  necessarily  be  accepted  under  the  benefit 
of  inventory. 

Inheritances  falling  to  persons  who  can  accept  or  repudiate  only 
through  the  direction  or  with  the  authority  of  others,  shall  be  accepted 
in  the  same  manner. 

Should  the  provisions  of  this  article  not  be  observed,  the  natural  or 
juristic  persons  represented  shall  not  be  liable  for  the  debts  and  charges 
of  the  succession  beyond  the  value  of  the  estate  at  the  time  of  the 
suit,  or  the  amount  that  is  proved  to  have  been  actually  expended  for 
the  benefit  thereof. 

191,  486,  487,  182,  211,  1282,  1815  pars.  2  and  3. 

Art.  1308.  Fiduciary  heirs  are  obliged  to  accept  under  the  benefit 
of  inventory. 

813,  814,  834,  835,  837. 

Art.  1309.  Every  heir  retains  the  power  to  accept  under  the  benefit 
of  inventory,  as  long  as  he  has  not  performed  an  act  of  heirship. 

1287,  1298,  1299,  1301,  1302. 

Art.  1 3 10.  In  the  preparation  of  the  inventory  the  prescriptions  for 
those  of  tutors  and  curators,  contained  in  articles  472  et  seq.,  and  the 

*See  La.  Civil  Code,  arts.  1032  [1025]  et  seq. 


279 

provisions  of  the  Code  of  Procedure  regarding  formal  inventories,  shall 
be  observed. 

1822. 

Art.  1 3 1 1 .  If  the  deceased  shall  have  had  an  interest  in  a  partner- 
ship, and  shall  have  stipulated  in  a  clause  of  the  articles  of  partnership 
that  the  partnership  was  to  continue  with  his  heirs  after  his  death,  this 
shall  not  be  a  reason  for  omitting  the  partnership  property  from  the 
inventory,  without  prejudice  to  the  partners  continuing  their  adminis- 
tration until  the  partnership  expires,  and  without  any  bond  being 
required  of  them. 

2129. 

Art.  131 2.  The  executor,  the  curator  to  the  vacant  succession,  the 
presumptive  testamentary  or  intestate  heirs,  the  surviving  spouse,  the 
legatees,  the  commercial  partners,  the  cestuis  que  trustent  and  every 
hereditary  creditor  who  presents  the  title  of  his  credit,  shall  have  a 
right  to  be  present  at  the  inventory.  The  foregoing  persons  may  be 
represented  by  others  who  produce  a  public  or  private  instrument  by 
which  this  duty  is  entrusted  to  them,  when  they  are  not  represented  by 
their  husbands,  tutors  or  curators,  or  any  other  legal  representatives. 

All  of  these  persons  shall  have  a  right  to  object  to  the  inventory  in  all 
that  appears  to  them  to  be  incorrect. 

471,  472. 

Art.  13 13.  An  heir  who,  in  the  preparation  of  the  inventory,  shall, 
in  bad  faith,  fail  to  mention  any  part  of  the  property,  no  matter  how 
small,  or  shall  suppose  debts  which  do  not  exist,  shall  not  enjoy  the  bene- 
fit of  inventory. 

1824,  1288,  476,  477. 

Art.  1 3 14.  He  who  accepts  under  the  benefit  of  inventory,  becomes 
responsible,  not  only  for  the  value  of  the  property  he  actually  receives 
at  that  time,  but  also  for  that  of  the  property  which  subsequently 
accrues  to  the  inheritance  involved  in  the  inventory. 

The  list  and  appraisal  of  this  property  shall  be  added  to  the  existing 
inventory,  with  the  formalities  observed  in  the  preparation  of  the  latter. 

Art.  1 31 5.  He  shall  become  likewise  liable  for  all  the  credits  if  he  has 
actually  collected  them;  without  prejudice  to  his  accounting,  at  the 
proper  time,  for  his  discharge,  for  the  credits  uncollected,  placing  at  the 
disposition  of  the  persons  interested  the  unpaid  actions  and  titles. 

497,  2183,  66,  1604  par.  3- 


28o 


Art.  13 16.  The  debts  and  credits  of  the  beneficiary  heir  are  not  con- 
founded with  the  debts  and  credits  of  the  succession. 

1304,  1414,  1728. 

Art.  13 1 7.  The  beneficiary  heir  shallbe  liable  to  the  extent  of  a  light 
fault,  for  the  preservation  of  the  specific  or  certain  things  which  may 
be  due. 

The  safety  of  the  other  property  of  the  succession  runs  at  his  risk,  and 
he  is  liable  only  for  the  value  at  which  it  was  appraised. 

1604  par.  1. 

Art.  13 1 8.  The  beneficiary  heir  may  at  any  time  exonerate  himself 
from  his  obligations,  by  abandoning  to  the  creditors  the  property  of  the 
succession  that  he  is  obliged  to  deliver  in  kind,  and  the  balance  remain- 
ing from  the  other  property,  and  obtaining  from  them  or  from  the  Judge 
the  approval  of  the  account  of  his  administration,  which  he  is  obliged  to 
submit  to  them. 

Art.  1 3 1 9.  The  property  of  the  succession  or  the  portion  thereof  which 
fell  to  the  beneficiary  heir,  having  been  exhausted  in  the  payment  of 
the  debts  and  charges,  the  Judge  must,  on  the  petition  of  the  beneficiary 
heir,  cite  the  hereditary  and  testamentary  creditors  who  have  not  been 
satisfied,  by  edicts,  in  order  that  they  may  receive  from  said  heir  an 
exact  account,  with  vouchers  in  so  far  as  possible,  of  all  the  disburse- 
ments he  may  have  made;  and  after  the  approval  of  the  account  by 
them,  or,  in  the  event  of  disagreement,  by  the  Judge,  the  beneficiary 
heir  shall  be  declared  relieved  from  any  further  liability. 

504,  2181. 

Art.  1320.  The  beneficiary  heir  who  shall  plead  to  a  suit  that  the 
hereditary  property  or  the  portion  thereof  that  has  fallen  to  him,  has 
already  been  exhausted  in  the  payment  of  debts  and  charges,  must 
prove  it  by  presenting  to  the  plaintiffs  an  exact  account,  with  vouchers, 
in  so  far  as  possible,  of  all  the  disbursements  he  may  have  made. 

1757- 

Chapter  4. 

Of  the  Petition  of  Inheritance  and  Other  Actions  of  the  Heir. 

Art.  132 1.  He  who  shall  establish  his  right  to  an  inheritance  occupied 
by  another  person  in  the  capacity  of  heir,  shall  have  a  right  of  action  to 
secure  the  adjudication  to  him  of  the  inheritance  and  the  restitution  of 
the  hereditary  things,  corporeal  as  well  as  incorporeal ;  and  even  those 


28l 

of  which  the  deceased  had  the  mere  seizin,  as  depositary,  bailee  (in 
commodatum  or  pledge),  lessee,  etc.,  and  which  have  not  legally  returned 
to  their  owners. 

665,  948. 

Art.  1322.  Said  action  extends  not  only  to  the  things  which  belonged 
to  the  deceased  at  the  time  of  his  death,  but  also  to  the  increase  which 
the  inheritance  may  subsequently  have  acquired. 

1 176,  716,  964. 

Art.  1323.  The  rules  governing  an  action  of  revendication  shall  be 
applied  to  the  restitution  of  fruits  and  the  allowance  of  improvements 
in  the  petition  of  inheritance. 

961  et  seq. 

Art.  1324.  He  who  shall  have  occupied  the  inheritance  in  good  faith 
shall  be  responsible  for  the  alienation  or  deteriorations  of  the  hereditary 
things,  only  in  so  far  as  they  may  have  made  him  richer ;  but  if  he  shall 
have  occupied  it  in  bad  faith,  he  shall  be  liable  for  the  entire  value  of  the 
alienations  or  deteriorations. 

Art.  1325.  The  heir  may  also  bring  an  action  of  revendication  against 
the  hereditary  things  subject  to  revendication  which  may  have  passed 
into  the  hands  of  third  persons  and  shall  not  have  been  prescribed  by 
them. 

If  he  prefer  to  make  use  of  this  action,  he  shall  nevertheless  retain  his 
right  to  recover  from  the  person  who  occupied  in  bad  faith  what  he  may 
not  have  been  able  to  secure  from  the  third  possessors,  so  that  he  shall 
be  entirely  indemnified;  and  he  shall  have  a  similar  right  against  the 
person  who  occupied  the  inheritance  in  good  faith,  in  so  far  as  the  latter 
may  be  bound  in  accordance  with  the  preceding  article. 

Art.  1326.  The  right  of  petition  of  inheritance  expires  in  three  years. 
But  the  putative  heir,  in  the  case  of  the  last  paragraph  of  article  766,  may 
oppose  a  prescription  of  ten  years  against  this  action,  computed  as  for 
the  acquisition  of  ownership. 

1032,  2533  subdivision  1. 


252 

TITLE  VIII. 

Of  Testamentary  Executors. 

Art.  1327.  Testamentary  executors  are  those  upon  whom  the  testator 
imposes  the  charge  of  executing  his  dispositions. 

Art.  1328.  If  the  testator  shall  not  have  appointed  an  executor,  or 
the  one  appointed  is  absent,  the  trust  of  carrying  out  the  dispositions  of 
the  testator  belongs  to  the  heirs. 

1297  par.  2. 

Art.  1329.  A  minor,  even  though  he  be  qualified  as  to  age,  cannot  be 
an  executor. 

Nor  the  persons  designated  in  article  586. 

34  par.  2,  339,  588. 

Art.  1330.  A  married  woman  cannot  discharge  an  executorship  with- 
out the  authority  of  her  husband  or  of  the  court,  in  place  thereof. 

By  whichever  of  these  two  modes  she  discharges  it,  she  binds  her  own 
property  only. 

Art.  1 33  i.  A  widow  who  is  the  executrix  of  her  deceased  husband, 
ceases  to  be  such  upon  re-marriage. 

599- 

Art.  1332.  Incapacity  occurring  during  the  executorship,  puts  an  end 
thereto. 

601. 

Art.  1333.  The  Judge,  at  the  instance  of  any  of  the  persons  interested 
in  the  succession,  shall  fix  a  reasonable  term  for  the  appearance  of  the 
executor  to  enter  upon  the  discharge  of  his  duties,  or  to  excuse  himself 
therefrom,  and  the  Judge  may,  in  a  necessary  case,  extend  this  term 
once  only. 

If  the  executor  should  delay  in  entering  an  appearance,  his  appoint- 
ment shall  lapse. 

Art.  1334.  An  executor  appointed  may  freely  decline  this  duty. 

Should  he  decline  it,  without  proving  serious  inconvenience,  he  shall 
become  unworthy  to  succeed  the  testator,  in  accordance  with  article 
1028,  par  2. 

1384, 


283 


Art.  1335.  The  executorship  having  been  expressly  or  impliedly 
accepted,  the  executor  is  obliged  to  discharge  it,  excepting  in  the  cases 
in  which  it  is  licit  for  a  mandatary  to  exonerate  himself  from  the  agency. 

Resignation  from  the  office,  with  legitimate  cause,  deprives  him  only 
of  a  proportional  part  of  the  allowance  which  may  have  been  made  him 
in  remuneration  for  his  services. 

2150  par.  3. 

Art.  1336.  An  executorship  is  not  transmissible  to  the  heirs  of  the 
executor. 

Art.  1337.  An  executorship  cannot  be  delegated,  unless  the  testator 
ihall  have  expressly  granted  the  power  to  delegate  it. 

The  executor,  however,  may  appoint  agents  who  shall  act  under  his 
orders;  but  he  shall  be  responsible  for  their  acts. 

2161. 

Art.  1338.  Should  there  be  a  number  of  executors,  they  shall  all  be 
liable  in  solido,  unless  the  testator  shall  have  relieved  them  of  the  soli- 
darity, or  the  testator  himself  or  the  Judge  shall  have  divided  their 
powers,  and  each  of  them  confines  himself  to  those  incumbent  upon  him. 

1568  par.  2,  508. 

Art.  1339.  The  Judge  may  divide  the  powers,  to  the  advantage  of 
:he  administration,  at  the  request  of  any  of  the  executors,  or  of  any  of 
the  persons  interested  in  the  succession. 

508. 

Art.  1340.  Should  there  be  two  or  more  executors  with  common 
powers,  all  of  them  shall  act  jointly,  in  the  same  manner  as  prescribed 
for  tutors  in  article  502. 

The  Judge  shall  settle  any  disagreements  which  may  arise  among 
them. 

The  testator  may  authorize  them  to  act  separately,  but  this  authori- 
zation alone  shall  not  be  construed  as  relieving  them  of  their  solidary 
liability. 

Art.  1 34  i.  It  shall  be  the  duty  of  the  executor  to  see  to  the  security 
of  the  property ;  cause  the  money,  furniture  and  papers  to  be  kept  under 
lock  and  key  and  sealed,  until  a  formal  inventory  shall  have  been  made, 
and  see  that  this  inventory  is  made  with  the  citation  of  the  heirs  and 
other  persons  interested  in  the  succession;  unless  all  the  heirs  being 
capable  of  administrating  their  property,  they  shall  unanimously  deter- 
mine that  a  formal  inventory  be  not  made. 

471,  1822. 


284 

Art.  1342.  Every  executor  shall  be  obliged  to  give  notice  of  the  open- 
ing of  the  succession  by  notices  published  in  the  press,  in  newspapers 
circulating  in  the  Territory,  and  by  means  of  posters  which  shall  be  affixed 
in  three  of  the  most  public  places  where  the  succession  is  opened,  and 
he  shall  take  care  that  the  creditors  are  cited  by  edicts  which  shall  be 
published  in  the  same  manner. 

2196  par.  2. 

Art.  1343.  Whether  the  testator  has  directed  the  executor  to  pay 
his  debts  or  not,  the  latter  shall  be  obliged  to  require  that  in  the  parti- 
tion of  the  property  a  sufficient  amount  thereof  or  sum  be  set  aside  to 
cover  the  known  debts. 

1393- 

Art.  1344.  The  omission  of  the  formalities  prescribed  in  the  two  pre- 
ceding articles,  shall  render  the  executor  liable  for  any  damage  which 
such  omission  may  cause  the  creditors. 

The  same  obligations  and  liability  shall  fall  upon  the  heirs  present 
who  have  the  free  administration  of  their  property,  or  upon  the  respec- 
tive tutors  or  curators,  and  the  husband  of  the  wife  who  inherits,  if  she 
be  not  separate  in  property. 

1393,  1412. 

Art.  1345.  The  executor  charged  with  the  payment  of  hereditary 
debts,  shall  do  so  with  the  intervention  of  the  heirs  present  or  the  cura- 
tor of  the  vacant  inheritance,  in  a  proper  case. 

Art.  1346.  Even  though  the  testator  shall  have  entrusted  the  pay- 
ment of  the  debts  to  the  executor,  the  creditors  shall  always  have  a 
right  of  action  against  the  heirs,  if  the  executor  should  delay  in  paying 
them. 

Art.  1347.  He  shall  pay  the  legacies  which  may  not  have  been  im- 
posed upon  a  determined  heir  or  legatee;  for  which  purpose  he  shall 
demand  of  the  heirs  or  of  the  curator  of  the  vacant  inheritance,  the 
money  that  may  be  necessary,  and  the  specific  movable  or  immovable 
property  of  which  the  legacies  consist,  if  the  testator  should  not  have 
left  him  the  seizin  of  the  money  or  of  the  things. 

The  heirs,  nevertheless,  may  make  the  payment  of  the  said  legacies 
themselves,  and  turn  over  to  the  executor  the  respective  receipts ;  unless 
the  legacy  consists  of  a  work  or  act  specially  entrusted  to  the  executor, 
and  left  to  his  judgment. 

1155. 
Art.  1348.  If  there  be  legacies  for  objects  of  public  charity,  he  shall 


285 


give  notice  thereof,  with  the  insertion  of  the  respective  testamentary 
clauses,  to  the  representative,  syndic  or  agent  of  the  establishment  to 
which  such  legacies  may  have  been  or  are  to  be  destined,  or  to  the  muni- 
cipal representative,  if  the  case  be  that  of  article  1 1 15,  or  if  the  legacies 
be  for  purposes  of  public  utility;  and  he  shall  likewise  inform  them  of 
the  neglect  of  the  heirs  or  legatees  bound  therefor,  or  of  the  curator  of 
the  vacant  inheritance,  in  a  proper  case,  in  order  that  they  may  take  the 
proper  action  to  secure  the  execution  of  said  legacies. 

Art.  1349.  If  the  payment  of  specific  things  bequeathed  is  not  to  be 
made  at  once,  and  if  there  be  good  reason  to  fear  that  they  may  be  lost 
or  deteriorate  through  the  neglect  of  the  persons  bound  to  give  them,  the 
executor  whose  duty  it  is  to  execute  the  legacies,  may  require  security 
of  them. 

Art.  1350.  With  the  consent  of  the  heirs  present,  he  shall  proceed  to 
the  sale  of  the  movables  and  subsidiarily  of  the  immovables,  if  there 
should  not  be  sufficient  money  for  the  payment  of  the  debts  or  of  the 
legacies ;  and  the  heirs  may  object  to  the  sale  upon  delivering  to  the  ex- 
ecutor the  money  that  he  may  require  for  the  purpose. 

484,  501. 

Art.  i  35 1.  The  provisions  of  articles  484  and  501  apply  to  executors. 

Art.  1352.  The  executor  shall  not  be  able  to  appear  in  court  as  such, 
except  to  defend  the  validity  of  the  testament,  or  when  it  should  be 
necessary  to  do  so  to  carry  out  the  testamentary  dispositions  incumbent 
upon  him ;  and  in  every  case  he  shall  do  so  with  the  intervention  of  the 
heirs  present  or  of  the  curator  of  the  vacant  inheritance. 

1289  par.  2,  1353  par.  2. 

Art.  1353.  The  testator  may  grant  the  executor  the  seizin  of  any 
>art  of  the  property  or  of  all  of  it. 

The  executor  shall  have  in  the  latter  case,  the  same  powers  and  obli- 
gations as  the  curator  of  a  vacant  inheritance ;  but  he  shall  be  obliged 
to  furnish  bond  in  the  case  of  the  following  article  only. 

Notwithstanding  this  seizin,  the  provisions  of  the  preceding  articles 
shall  apply. 

1637,  575  et  seq. 

Art.  1354.  The  heirs,  legatees  or  cestuis  que  trustcnt,  in  the  event  of 
just  fear  as  to  the  safety  of  the  property  of  which  the  executor  is  seized, 
and  to  which  he  may  respectively  have  an  actual  or  eventual  right,  may 
demand  that  the  proper  securities  be  required  of  him. 


820. 


286 

Art.  1355.  The  testator  cannot  increase  the  powers  of  the  executor, 
nor  relieve  him  of  his  obligations,  as  both  are  denned  in  this  Title. 

1380,  1366. 

Art.  1356.  An  executor  is  responsible  to  a  light  fault  in  the  discharge 
of  his  duties. 

63  par.  3. 

Art.  1357.  He  shall  be  removed  for  a  grave  fault  or  fraud,  on  the  peti- 
tion of  the  heirs  or  of  the  curator  of  the  vacant  inheritance,  and  in  the 
case  of  fraud  he  shall  become  unworthy  to  participate  in  any  manner 
whatsoever  in  the  succession,  and,  in  addition  to  indemnifying  the  per- 
sons interested  for  any  damage,  he  shall  return  all  that  he  may  have  re- 
ceived as  compensation. 

63  par.  2,  1028  par.  2,  1386. 

Art.  1358.  The  executor  is  forbidden  to  carry  out  any  disposition  of 
the  testator,  in  so  far  as  contrary  to  law,  under  the  penalty  of  nullity, 
and  of  being  considered  guilty  of  fraud. 

Art.  1359.  The  compensation  of  the  executor  shall  be  that  which  the 
testator  may  have  assigned  him. 

If  the  testator  shall  not  have  fixed  any  sum,  it  shall  be  the  duty  of  the 
Judge  to  fix  it,  taking  into  consideration  the  estate,  and  the  more  or  less 
laborious  character  of  the  duties. 

Art.  1360.  The  executorship  shall  continue  for  the  certain  and  de- 
termined time  which  the  testator  may  have  fixed  in  advance. 

Art.  1 36 1.  If  the  testator  should  not  have  fixed  any  time  for  the 
duration  of  the  executorship,  it  shall  continue  for  one  year  from  the  date 
upon  which  the  executor  shall  have  begun  to  discharge  his  duties. 

1826  par.  2. 

Art.  1362.  The  Judge  may  extend  the  period  fixed  by  the  testator  or 
by  the  law,  if  the  executor  should  encounter  serious  difficulties  in  the 
execution  of  his  trust. 

Art.  1363.  The  term  fixed  by  the  testator  or  the  law,  or  extended  by 
the  Judge,  shall  be  considered  without  prejudice  to  the  partition  of  the 
property  and  its  distribution  among  the  participants. 

1389  par.  2,  1826  par.  2. 

Art.  1364.  The  heirs  may  demand  the  termination  of  the  executor- 
ship as  soon  as  the  executor  shall  have  terminated  his  duties,  even  though 
the  period  fixed  by  the  testator  or  the  law,  or  extended  by  the  Judge,  for 
the  discharge  thereof,  shall  not  have  expired. 


287 


Art.  1365.  The  existence  of  legacies  or  ftdei  comissa,  the  day  or  con- 
dition of  which  should  still  be  pending,  shall  not  be  a  cause  either  for  the 
extension  of  the  period  or  for  the  termination  of  the  executorship,  unless 
the  testator  shall  have  expressly  given  the  executor  the  seizin  of  the 
respective  specific  things,  or  of  that  part  of  the  property  destined  to  their 
execution;  in  which  case  the  executorship  shall  be  limited  to  this  sole 
seizin. 

What  has  been  said  is  extended  to  the  debts  the  payment  of  which  may 
have  been  entrusted  to  the  executor,  and  whose  due  date,  condition  or 
liquidation  should  be  pending ;  and  it  shall  be  understood  without  prcju  - 
dice  to  the  rights  conferred  upon  the  heirs  by  the  preceding  articles. 

Art.  1366.  The  executor,  upon  the  termination  of  his  charge,  shall 
render  an  account  of  his  administration,  together  with  vouchers. 

The  testator  cannot  relieve  him  of  this  obligation. 

504,  1319,  1373,  2181,  1355. 

Art.  1367.  The  executor,  after  the  accounts  shall  have  been  exam- 
ined by  the  respective  persons  interested,  and  after  the  deduction  of  the 
legitimate  expenses,  shall  pay  or  receive  the  balance  which  may  result 
against  him  or  in  his  favor,  according  to  the  provisions  for  tutors  or 
curators  in  similar  cases. 


5i3- 


288 

TITLE  IX. 

Of  Fiduciary  Executors. 

Art.  1368.  The  testator  may  entrust  secret  and  confidential  commis- 
sions to  the  heir,  the  executor  or  any  other  person  for  the  application  of 
an  amount  of  property  of  which  he  can  freely  dispose,  to  one  or  more 
licit  objects. 

The  person  entrusted  with  the  execution  thereof  is  called  a  fiduciary 
executor. 

1058. 

Art.  1369.  The  commissions  which  the  testator  shall  give  secretly 
and  confidentially,  and  in  which  a  portion  of  his  property  is  to  be  em- 
ployed, shall  be  subject  to  the  following  rules : 

1.  The  person  of  the  fiduciary  executor  must  be  designated  in  the 
testament. 

2.  The  fiduciary  executor  shall  have  the  qualifications  necessary  to  be 
an  executor  and  legatee  of  the  testator ;  but  the  quality  of  being  a  secu- 
lar ecclesiastic  shall  not  be  an  obstacle  thereto,  provided  he  be  not  com- 
prised in  the  case  of  article  1022. 

3.  The  specific  things  or  sum  which  is  to  be  delivered  to  him  for  the 
fulfillment  of  his  commission,  must  be  stated  in  the  testament. 

In  the  absence  of  any  of  these  requisites,  the  disposition  shall  not  be 
valid. 

1058,  1329,  1018  et  seq. 

Art.  1370.  Not  more  than  one-half  of  that  portion  of  the  property 
disposable  at  the  will  of  the  testator,  can  be  destined  to  these  secret 
commissions. 

1242  pars.  2  and  3. 

Art.  1371.  The  fiduciary  executor  must  swear  before  the  Judge  that 
the  purpose  of  the  commission  is  not  to  cause  any  part  of  the  property 
of  the  testator  to  pass  to  an  incapable  person,  or  to  invest  it  in  an  illicit 
object. 

He  shall,  at  the  same  time,  swear  to  execute  his  commission  faithfully 
and  legally,  conforming  to  the  will  of  the  testator. 

The  oath  must  be  taken  before  the  delivery  or  advance  of  the  specific 
things  or  money  set  aside  for  the  commission. 


289 

If  the  fiduciary  executor  should  refuse  to  take  the  oath  required  of 
him,  the  commission  shall  by  such  act  fall. 

1029. 

Art.  1372.  The  fiduciary  executor  may  be  required,  at  the  instance 
of  a  general  executor,  or  of  an  heir,  or  of  the  curator  of  the  vacant  inheri- 
tance, and  with  some  just  cause,  to  place  in  deposit  or  secure  one-quarter 
of  that  which  may  be  delivered  to  him  by  reason  of  the  commission,  to 
answer  with  this  sum  for  the  action  for  amendment  or  the  hereditary 
debts  in  the  cases  prescribed  by  law. 

This  sum  may  be  increased,  if  the  Judge  should  deem  it  necessary  for 
the  security  of  the  persons  interested. 

Upon  the  expiration  of  four  years  after  the  opening  of  the  succession, 
the  part  remaining  shall  be  returned  to  the  fiduciary  executor,  or  the 
bond  shall  be  cancelled. 

1267  par.  2,  1274. 

Art.  1373.  The  fiduciary  executor  shall  not  be  obliged  in  any  case, 
to  reveal  the  object  of  the  secret  commission,  nor  to  give  an  account  of 
his  administration. 

2181  par.  3. 


290 


T1TJLE  X. 

Of  tlie  Partition  of  the  Property. 

See  art.  37  of  law  153  of  1887. 

Art.  1374.  None  of  the  co-assigns  of  a  universal  or  singular  thing 
shall  be  obliged  to  remain  in  the  indi vision;  the  partition  of  the  object 
assigned  may  always  be  demanded,  provided  the  co-assigns  shall  not 
have  agreed  otherwise. 

A  stipulation  to  hold  a  thing  pro  indiviso  cannot  exceed  five  years, 
but  upon  the  expiration  of  this  term,  the  agreement  may  be  renewed. 

The  preceding  provisions  do  not  apply  to  lakes  of  private  ownership, 
nor  to  rights  of  servitude,  nor  to  the  things  which  the  law  requires  be 
kept  undivided,  such  as  fiduciary  property. 

812,  900,  794. 


Art.  1375.  If  the  deceased  shall  have  made  the  partition  by  an  act 
inter  vivos  or  by  a  testament,  it  shall  be  observed,  in  so  far  as  not  con- 
trary to  the  rights  of  others. 

1255. 

Art.  1376.  If  any  of  the  co-assigns  should  be  such  under  a  suspensive 
condition,  he  shall  not  have  the  right  to  demand  the  partition  during 
the  pendency  of  the  condition.  But  the  other  co-assigns  may  proceed 
thereto,  upon  fully  securing  the  conditional  assign  what  may  be  due 
him,  upon  fulfillment  of  the  condition. 

If  the  object  assigned  be  a  fidei  commissum,  the  provisions  of  the  Title 
Of  Fiduciary  Property,  shall  be  observed. 

1128. 

Art.  1377.  If  a  co-assign  shall  sell  or  cede  his  quota  to  another  per- 
son, the  latter  shall  have  the  same  right  as  the  vendor  or  transferrer  to 
demand  the  partition  and  participate  therein. 

Art.  1378.  If  one  of  a  number  of  co-assigns  should  die  after  the 
assignment  shall  have  been  deferred  to  him,  any  of  the  heirs  of  the  latter 
may  request  the  partition;  but  they  shall  form  one  single  person  therein, 
and  may  act  jointly  only,  or  through  a  common  attorney. 

1583  No.  4,  par.  3,  949. 


291 

Art.  1379.  Tutors  and  curators,  and,  in  general,  all  those  who  ad- 
minister the  property  of  others,  by  provision  of  law,  cannot  proceed  to 
the  partition  of  the  inheritances  or  of  the  real  property  in  which  their 
wards  may  have  an  interest,  without  judicial  authorization. 

But  the  husband  shall  not  require  this  authorization  to  institute  pro- 
ceedings for  the  partition  of  the  property  in  which  his  wife  is  inter- 
ested ;  the  consent  of  his  wife  shall  be  sufficient,  if  she  should  be  of  age, 
and  not  incapable  of  giving  it,  or  that  of  the  court,  in  substitution 
thereof. 

485,  1383  par.  2. 

Art.  1380.  The  executor  or  co-assign  of  the  thing  whose  partition  is 
in  question,  cannot  be  the  partitioner,  except  in  the  cases  expressly 
excepted. 

Art.  1 38 1.  The  appointment  of  a  partitioner  which  the  deceased  may 
have  made  by  a  public  instrument  inter  vivos  or  by  testament,  shall  be 
valid,  even  though  the  person*  appointed  be  of  those  disqualified  by  the 
preceding  article. 

1758,  1760. 

Art.  1382.  If  all  of  the  co-assigns  should  have  the  free  disposition  of 
their  property,  and  should  attend  the  act,  they  may  make  the  partition 
themselves,  or  appoint  a  partitioner  by  common  agreement;  and  in 
such  case  the  disqualifications  mentioned  in  the  aforesaid  article  shall 
not  apply. 

Should  they  not  agree  on  the  appointment,  the  Judge,  on  the  petition 
of  any  of  them,  shall  appoint  such  partitioner  as  he  may  desire,  provided 
that  it  be  not  a  person  proposed  by  the  parties,  nor  the  executor  or  a 
co-assign. 

Art.  1383.  If  any  of  the  co-assigns  should  not  have  the  free  disposi- 
tion of  his  property,  the  appointment  of  a  partitioner  which  shall  not 
have  been  made  by  the  Judge,  must  be  approved  by  the  latter. 

From  this  provision  is  excepted  a  married  woman,  whose  property  is 
administered  by  the  husband ;  in  such  cases  the  consent  of  the  wife  shall 
be  sufficient,  or  that  of  the  court,  in  place  thereof. 

The  curator  of  the  property  of  an  absentee,  appointed  in  accordance 
with  the  provisions  of  article  1289,  last  paragraph,  shall  represent  him 
in  the  partition,  and  shall  administer  such  property  as  may  be  adjudi- 
cated to  him  therein,  according  to  the  rules  governing  the  curatorship 
ad  bona. 

1379  par.  2,  575. 

Art.  1384.  The  partitioner  is  not  obliged  to  accept  this  charge  against 


292 

his  will ;  but  if  he  shall  have  been  appointed  in  the  testament,  and  does 
not  accept  the  charge,  the  provisions  regarding  executors  in  similar  cases 
shall  apply. 

1028  pars.  2  and  3,  1334,  1335. 

Art.  1385.  The  partitioner  who  accepts  the  charge  must  make  a  state- 
ment to  that  effect,  and  shall  take  oath  to  discharge  it  faithfully  and 
within  the  shortest  period  possible. 

Art.  1386.  The  responsibility  of  a  partitioner  extends  to  a  slight 
fault,  and  in  the  case  of  prevarication,  declared  by  a  Judge  of  competent 
jurisdiction,  in  addition  to  being  subject  to  the  indemnity  for  damages 
and  the  legal  penalties  corresponding  to  the  crime,  he  shall  become  un- 
worthy, in  accordance  with  the  provisions  regarding  executors  of  last 
wills  contained  in  article  1357. 

63  par.  3. 

Art.  1387.  Before  beginning  the  partition,  the  ordinary  court  shall 
decide  the  controversies  as  to  rights  in  the  testate  or  intestate  succession, 
disinherison,  incapacity  or  unworthiness  of  the  assigns. 

Art.  1388.  Questions  as  to  the  ownership  of  the  objects  in  which  a 
person  alleges  an  exclusive  right,  and  which,  consequently,  should  not 
be  included  in  the  divisible  estate,  shall  be  decided  by  the  ordinary 
courts,  and  the  partition  shall  not  be  retarded  thereby.  If  decided  in 
favor  of  the  divisible  estate,  the  subsequent  proceedings  shall  be  in 
accordance  with  the  provisions  of  article  1406. 

Nevertheless,  if  a  considerable  portion  of  the  divisible  estate  be  in- 
volved, the  partition  may  be  suspended  until  they  are  decided;  if  the 
Judge,  on  the  petition  of  the  assigns  entitled  to  more  than  one-half  of 
the  divisible  estate,  should  so  decree. 

Art.  1389.  The  law  grants  the  partitioner  a  term  of  one  year  from  the 
date  of  his  acceptance  of  the  charge  in  which  to  effect  the  partition. 

The  testator  cannot  extend  this  period. 

The  co-assigns  may  extend  or  restrict  it  as  may  appear  to  them  ad- 
visable, even  against  the  will  of  the  testator. 

1363- 

Art.  1390.  The  common  costs  of  the  partition  shall  be  borne  by  the 
persons  interested  therein,  pro  rata. 

•  *  Art.  1391.  The  partitioner  shall  conform  in  the  adjudication  of  the 
property,  to  the  rules  contained  in  this  Title;  unless  the  co-assigns 
should  legally  and  unanimously  decide  otherwise. 

Art.  1392.  The  value  of  the  appraisal  by  experts  shall  be  the  basis 
upon  which  the  partitioner  shall  proceed  in  the  adjudication  of  the 


293 

specific  things ;  unless  the  co-assigns  shall  legitimately  and  unanimously 
have  agreed  upon  another,  or  that  the  things  be  sold  at  auction,  in  the 
cases  prescribed  by  law. 

Art.  1393.  The  partitioner,  even  in  the  case  of  article  1375,  and  even 
though  not  called  upon  to  do  so  by  the  executor  or  the  heirs,  shall  set 
aside  the  sum  or  amount  mentioned  in  article  1343,  and  the  omission  of 
this  duty  shall  render  him  liable  for  any  damage  with  regard  to  the 
creditors.  1 

1343,  1344- 

Art.  1394.  The  partitioner  shall  liquidate  what  is  due  each  of  the  co- 
assigns,  and  shall  proceed  to  distribute  the  hereditary  effects,  observing 
the  following  rules : 

1 .  Among  the  co-assigns  of  a  specific  thing  which  does  not  admit  of  a 
division,  or  the  division  of  which  would  reduce  its  value,  the  one  offering 
most  therefor  shall  have  the  better  right,  the  value  given  by  the  experts 
appointed  by  the  persons  interested  being  taken  as  the  basis  of  the  offer 
or  bid ;  any  of  the  co-assigns  shall  have  the  right  to  request  the  admis- 
sion of  outside  bidders,  and  the  price  shall  be  divided  among  all  the  co- 
assigns  pro  rata. 

2.  Should  no  one  offer  more  than  the  appraised  value  or  the  conven- 
tional value  mentioned  in  article  1392,  and  if  two  or  more  co-assigns 
should  be  competing  as  to  the  adjudication  of  a  thing,  the  preference 
shall  be  given  to  a  forced  heir  over  one  who  is  not. 

3.  The  portions  of  one  or  more  tenements  which  may  be  adjudicated 
to  the  same  person,  shall,  if  possible,  be  continuous,  unless  the  person  to 
whom  the  adjudication  may  be  made  shall  consent  to  receive  separate 
portions,  or  the  continuity  shall  entail  greater  prejudice  to  the  other 
persons  interested  than  the  separation  would  to  the  person  to  whom 
adjudicated. 

4.  An  endeavor  shall  be  made  to  secure  the  same  continuity  between 
a  tenement  adjudicated  to  one  assign  and  another  estate  owned  by  the 
same  assign. 

5.  In  the  division  of  tenements,  the  servitudes  necessary  for  its  con- 
venient administration  and  enjoyment  shall  be  established. 

6.  If  two  or  more  persons  should  be  the  co-assigns  of  a  tenement,  the 
partitioner  may,  with  the  legitimate  consent  of  the  persons  interested, 
separate  the  usufruct,  habitation  or  use  from  the  ownership,  in  order 
to  give  them  on  account  of  the  assignment. 

7.  In  the  partition  of  an  inheritance  or  of  the  residue  thereof,  after  the 
adjudication  of  the  specific  things  mentioned  in  the  preceding  numbers, 
the  greatest  possible  equality  must  be  observed,  awarding  to  each  one 
of  the  co-assigns  things  of  the  same  nature  and  quality  as  are  awarded 
the  others,  or  forming  lots  of  the  estate  to  be  partitioned. 


294 


8.  In  the  -formation  of  the  lots  an  endeavor  shall  be  made  to  secure 
not  only  equivalence,  but  also  similarity  in  all  of  them;  but  care  shall 
be  taken  not  to  separate  or  divide  objects  which  do  not  admit  of  easy 
division  or  the  separation  of  which  would  be  prejudicial ;  unless  the  per- 
sons interested  should  unanimously  and  legitimately  agree  thereto. 

9.  Each  of  the  persons  interested  may  object  to  the  manner  of  com- 
posing the  lots. 

10.  If  the  provisions  of  articles  1379  and  1383  are  complied  with, 
judicial  approval  shall  not  be  necessary  to  carry  out  the  provisions  of 
any  of  the  preceding  numbers,  even  when  some  or  all  of  the  co-heirs  be 
minors,  or  other  persons  who  do  not  have  the  free  administration  of 
their  property. 

905,  908. 

Art.  1395.  The  fruits  accruing  after  the  death  of  the  testator,  and 
during  the  indivision,  shall  be  divided  in  the  following  manner: 

1.  The  assigns  of  specific  things  shall  be  entitled  to  their  fruits  and 
accessions  from  the  moment  the  succession  is  opened ;  unless  the  assign- 
ment shall  have  been  from  a  day  certain,  or  under  a  suspensive  condi- 
tion, as  in  such  cases  the  fruits  shall  not  be  due  but  from  said  day  or  from 
the  time  of  the  fulfillment  of  the  condition;  unless  the  testator  shall 
have  expressly  provided  otherwise. 

2.  The  legatees  of  sums  or  generic  things  shall  not  be  entitled  to  any 
fruits,  but  from  the  moment  that  the  person  obliged  to  furnish  said  sums 
or  things  shall  have  been  in  default ;  and  this  payment  of  fruits  shall  be 
made  at  the  cost  of  the  heir  or  legatee  in  default. 

3.  The  heirs  shall  be  entitled  to  all  the  fruits  and  accessions  of  the 
undivided  hereditary  estate,  in  proportion  to  their  quotas;  deducting 
therefrom,  however,  the  fruits  and  accessions  belonging  to  the  assigns 
of  specific  things. 

4.  If  there  be  no  person  directly  charged  with  giving  the  legacy,  the 
deduction  referred  to  in  the  preceding  paragraph  shall  be  made  from  the 
fruits  and  accessions  of  the  entire  estate;  but  if  this  charge  shall  have 
been  imposed  by  the  testator  upon  one  of  his  assigns,  the  latter  only  shall 
suffer  the  deduction. 

716,  1013,  1176,  1012,  1138,  1128,  1542,  1543,  1608,  2328,  1155 
par.  2. 

Art.  1396.  The  fruits  hanging  at  the  time  of  the  adjudication  of  the 
specific  things  to  the  assigns  of  quotas,  sums  or  generic  things,  shall 
be  considered  as  part  of  the  respective  species  and  shall  be  taken  into 
consideration  for  the  appraisal  of  the  value  of  the  latter. 

714  et  seq. 


295 

Art.  1397.  If  any  of  the  heirs  should  desire  to  assume  a  larger  quota 
of  the  debts  than  his  pro  rata  portion,  under  any  condition  which  the 
other  heirs  accept,  he  may  do  so. 

The  hereditary  or  testamentary  creditors  shall  not  be  obliged  to  agree 
to  this  arrangement  of  the  heirs  for  the  purpose  of  bringing  their  suits. 

862  par.  2,  1295,  1415,  1416,  1430  par.  2,  1583  No.  4,  2475,  2484. 

Art.  1398.  If  the  patrimony  of  the  deceased  should  be  confounded 
with  property  belonging  to  other  persons  by  reason  of  private  prop- 
erty or  the  acquets  and  gains  of  the  spouse,  articles  of  partnership,  prior 
undivided  successions,  or  for  any  other  cause  whatsoever,  the  separa- 
tion of  the  patrimonies  shall  first  be  made,  dividing  the  common  species 
according  to  the  preceding  rules. 

Art.  1399.  Whenever  in  the  partition  of  the  entire  estate  or  of  a  por- 
tion thereof,  absentees  who  have  not  appointed  agents,  or  persons  under 
tutorship  or  curatorship,  or  juristic  persons,  have  an  interest,  it  shall  be 
necessary  that  it  be  submitted  on  termination  for  the  approval  of  the 
court. 

488. 

Art.  1400.  The  partition  having  been  made,  the  particular  titles  to 
the  objects  which  may  have  fallen  to  them  shall  be  delivered  to  the 
participants. 

The  titles  to  any  object  which  may  have  suffered  division  shall  belong 
to  the  person  designated  for  the  purpose  by  the  testator,  or  in  the  ab- 
sence of  such  designation,  to  the  person  to  whom  the  larger  portion  may 
have  fallen,  with  the  charge  of  exhibiting  them  in  favor  of  the  other  partici- 
pants and  to  permit  them  to  make  use  thereof,  when  requested  to  do  so. 

In  cases  of  equality,  the  matter  shall  be  decided  by  lot. 


757  No.  2. 


\ 


Art.  1 40 1.  Every  assign  shall  be  considered  to  have  succeeded  the 
deceased  immediately  and  exclusively,  in  all  the  effects  which  may  have 
fallen  to  him,  and  as  never  having  had  any  part  whatsoever  in  the  other 
effects  of  the  succession. 

Consequently,  if  any  of  the  co-assigns  shall  have  alienated  a  thing 
which  is  adjudicated  in  the  partition  to  another  of  them,  proceedings  may 
be  had  as  in  the  case  of  the  sale  of  a  thing  belonging  to  another. 

1799,  1868,  2442,  779,  1871. 

Art.  1402.  A  participant  who  shall  be  molested  in  the  possession  of 
the  object  which  may  have  fallen  to  him  in  the  partition,  or  who  shall 
have  suffered  eviction  therefrom,  shall  denounce  it  to  the  other  partici- 


296 

pants  in  order  that  they  may  assist  in  causing  the  molestation  to  cease, 
and  shall  have  the  right  to  warranty  of  eviction. 

This  right  of  action  shall  prescribe  in  four  years,  counted  from  the 
date  of  the  eviction. 

1913.  i ...; 

Art.  1403.  This  action  shall  not  lie: 

1.  If  the  eviction  or  molestation  be  due  to  a  cause  arising  after  the 
partition. 

2.  If  the  right  of  warranty  should  have  been  expressly  renounced. 

3.  If  the  participant  suffered  the  molestation  or  eviction  through  his 
own  fault. 

1895,  1898,  1909. 

Art.  1404.  The  payment  of  the  warranty  shall  be  divided  among  the 
participants  in  proportion  to  their  quotas. 

The  portion  of  the  insolvent  is  a  charge  upon  all  the  others  in  propor- 
tion to  their  quotas,  including  the  one  who  is  to  be  indemnified. 

2329,  21 15  par.  2,  1422. 

Art.  1405.  Partitions  are  annulled  or  rescinded  in  the  same  manner 
and  according  to  the  same  rules  as  contracts. 

The  rescission  by  reason  of  lesion  is  granted  to  him  who  has  been 
damaged  in  more  than  one-half  of  his  quota. 

1546,  1947. 

Art.  1406.  The  involuntary  omission  of  some  objects  shall  not  be  a 
cause  for  the  rescission  of  the  partition.  That  in  which  they  shall  have 
been  omitted  shall  be  continued  later,  and  they  shall  be  divided  among 
the  participants  in  accordance  with  their  respective  rights. 

1388. 

Art.  1407.  The  other  participants  may  stop  the  rescissory  action 
brought  by  one  of  them,  by  offering  and  securing  to  him  the  balance  of 
his  portion  in  cash. 

Art.  1408.  An  action  for  annulment  or  rescission  cannot  be  brought 
by  the  participant  who  shall  have  alienated  his  portion  in  whole  or  in 
part,  unless  there  shall  have  been  error,  force  or  fraud  in  the  partition, 
from  which  damage  may  result  to  him. 

1508  et  seq. 


297 

Art.  1409.  An  action  for  annulment  or  rescission  prescribes  with  re- 
gard to  the  partitions,  according  to  the  general  rules  which  fix  the  dura- 
tion of  rights  of  action  of  this  character. 

1750,  1954- 

Art.  1 4 10.  A  participant  who  shall  not  be  desirous  of  or  unable  to 
bring  an  action  for  annulment  or  rescission,  shall  retain  the  other  legal 
remedies  he  may  have  to  be  indemnified. 


TITLE  XI. 

Of  the  Payment  of  Hereditary  and  Testamentary  I>ebts. 

Art.  141  i.  The  hereditary  debts  are  divided  among  the  heirs,  in  pro- 
portion to  their  quotas. 

Thus,  the  heir  of  one-third  is  obliged  to  pay  only  one-third  of  the 
hereditary  debts. 

But  the  beneficiary  heir  is  not  obliged  to  pay  any  part  of  the  hereditary 
debts  beyond  the  value  of  what  he  inherits. 

What  is  said  is  without  prejudice  to  the  provisions  of  articles  14 13  and 
1583. 

1257,  1580,  1585,  1896,  1008  par.  2,  1 155,  1238,  1304,  1016  No.  2, 
1343,  1393,  1420. 

Art.  141 2.  The  insolvency  of  one  of  the  heirs  is  not  a  charge  upon  the 
others;  excepting  in  the  cases  of  article  1344,  paragraph  2. 

1420,  1583. 

Art.  141 3.  The  usufructuary  or  fiduciary  heirs  divide  the  debts  with 
the  proprietary  or  fideicommissary  heirs,  according  to  the  provisions  of 
articles  1425  and  1429,  and  the  hereditary  creditors  may  bring  their 
actions  against  them,  in  accordance  with  the  said  articles. 

Art.  14 14.  If  one  of  the  heirs  should  be  the  creditor  or  debtor  of  the 
deceased,  there  shall  be  confounded  with  his  hereditary  portion  only  the 
quota  of  this  credit  or  debt  falling  to  him,  and  he  shall  have  a  right  of 


298 

action  against  his  co-heirs  pro  rata,  for  the  rest  of  his  credit,  and  shall  be 
obligated  to  them  pro  rata  for  the  balance  of  his  debt. 

1261,  1316. 

Art.  14 i 5.  If  the  testator  should  divide  the  hereditary  debts  among 
the  heirs  in  a  manner  different  from  that  prescribed  in  the  preceding 
articles,  the  hereditary  creditors  may  exercise  their  riguts  of  action, 
either  in  conformity  with  said  articles,  or  in  accordance  with  the  dispo- 
sitions of  the  testator,  as  may  appear  to  them  more  advantageous. 
But,  in  the  former  case,  heirs  who  sustain  a  greater  charge  than  that  im- 
posed upon  them  by  the  testator,  shall  be  entitled  to  indemnity  from 
their  co-heirs. 

1430  par.  2,  1397,  1583  No.  4,  2325. 

Art.  14 1 6.  The  rule  of  the  preceding  article  applies  to  a  case  in  which 
by  the  partition  or  by  agreement  of  the  heirs,  the  debts  are  distributed 
among  them  in  a  manner  different  from  that  expressed  in  the  said  articles 

Art.  141 7.  The  testamentary  charges  shall  not  be  considered  as 
charges  of  the  heirs  in  common,  excepting  when  the  testator  should  not 
have  charged  them  upon  one  of  more  of  the  heirs  or  legatees  particularly. 

Those  falling  to  the  heirs  in  common,  shall  be  divided  among  them  as 
the  testator  may  have  disposed,  and  if  he  shall  have  been  silent  as  to  the 
division,  they  shall  be  divided  in  proportion  to  their  quotas,  or  in  the 
form  prescribed  by  the  said  articles. 

1 155  par.  2,  1227,  1430. 

Art.  141 8.  Legacies  of  periodical  pensions  are  due  day  by  day,  from 
the  day  upon  which  they  are  deferred ;  but  they  can  be  demanded  only 
on  the  expiration  of  the  respective  terms,  which  shall  be  presumed  to  be 
monthly. 

Nevertheless,  if  the  pensions  should  be  for  support,  each  payment  may 
be  demanded  from  the  beginning  of  the  respective  term,  and  there  shall 
be  no  obligation  to  make  restitution  of  any  part,  even  though  the  legatee 
should  die  before  the  expiration  of  the  term. 

If  the  legacy  of  a  pension  for  support  should  be  a  continuation  of  that 
which  the  testator  paid  during  his  lifetime,  it  shall  continue  to  be  paid  as 
if  the  testator  had  not  died. 

The  express  will  of  the  testator  shall  prevail  over  all  these  rules. 

1013  par.  2,  421,  1228,  1229,  1192,  1127,  1618. 

Art.  14 i 9.  The  legatees  are  not  obliged  to  contribute  to  the  payment 
of  the  legitimes  or  of  the  hereditary  debts,  unless  the  testator  shall  destine 
to  the  legacies  a  part  of  the  portion  of  property  which  the  law  reserves  to 


299 

the  forced  heirs,  or  when  at  the  time  of  opening  the  succession  there  should 
not  have  been  sufficient  therein  to  pay  the  hereditary  debts. 

The  right  of  action  of  the  hereditary  creditors  against  the  legatees  is  in 
substitution  of  that  which  they  have  against  the  heirs. 

1242,  1 199,  1200,  1 1 62. 

Art.  1420.  The  legatees  who  may  have  to  contribute  to  the  payment 
of  the  legitimes  or  of  the  hereditary  debts,  shall  do  so  in  proportion  to  the 
value  of  their  respective  legacies,  and  the  portion  of  the  insolvent  legatee 
shall  not  be  a  charge  upon  the  others. 

Those  whom  the  testator  shall  have  expressly  relieved  therefrom, 
shall  not  contribute,  nevertheless,  with  the  other  legatees.  But  if  the 
contributions  of  the  other  legatees  having  been  exhausted,  a  legitime 
should  remain  incomplete  or  a  debt  unpaid,  even  the  legatees  relieved 
therefrom  by  the  testator,  shall  be  obliged  to  contribute. 

Legacies  of  pious  works  or  works  of  public  charity,  shall  be  under- 
stood as  exonerated  or  relieved  by  the  testator,  without  the  necessity  of 
an  express  provision,  and  shall  contribute  after  those  expressly  relieved 
therefrom;  but  legacies  which  are  strictly  for  support,  and  which  are 
obligatory  upon  the  testator  under  the  law,  shall  not  contribute  until 
after  all  the  others. 

1412,  1583,  1242,  1162,  1199,  1200. 

Art.  142 1.  The  legatee  who  is  obliged  to  pay  a  legacy  shall  be  obli- 
gated only  to  the  extent  of  the  benefit  he  may  derive  from  the  succes- 
sion; but  he  must  prove  the  amount  by  which  the  charge  exceeds  the 
benefit. 

1757. 

Art.  1422.  If  various  immovables  are  subject  to  a  mortgage,  the 
mortgage  creditor  shall  have  a  solidary  action  upon  each  of  said  immov- 
ables, without  prejudice  to  the  remedy  of  the  heir  to  whom  the  immov- 
able may  belong,  against  his  co-heirs,  for  the  quota  of  the  debt  falling  to 
them. 

Even  though  the  creditor  should  have  subrogated  the  owner  of  the 
immovable  in  his  actions  against  his  co-heirs,  each  of  the  latter  shall  be 
responsible  only  for  that  part  of  the  debt  falling  to  him. 

But  the  portion  of  an  insolvent  shall  be  divided  among  all  the  heirs 
in  proportion. 

1404,  1420  par.  1,  2121,  2325. 

Art.  1423.  A  legatee  who  by  virtue  of  a  mortgage  or  pledge  upon  the 
specific  thing  bequeathed,  shall  have  paid  a  hereditary  debt  with  which 


3<x> 

the  testator  did  not  wish  to  charge  him  expressly,  is  subrogated  by  the 
law  in  the  right  of  action  of  the  creditor  against  the  heirs. 

If  the  mortgage  or  pledge  shall  have  been  accessory  to  the  obligation 
of  another  person  than  the  testator  himself,  the  legatee  shall  have  no 
right  of  action  against  the  heirs. 

1668. 

Art.  1424.  Legacies  with  an  onerous  consideration  (causa),  which  can 
be  estimated  in  money,  contribute  only  after  the  deduction  of  the  en- 
cumbrance, and  with  the  attendance  of  the  following  circumstances : 

1 .  That  the  object  shall  have  been  effected. 

2.  That  it  could  not  have  been  effected  without  the  expenditure  of  a 
certain  amount  of  money. 

Either  circumstance  must  be  established  by  the  legatee,  and  the 
amount  shown  to  have  been  expended  only  shall  be  deducted  by  rea- 
son of  the  charge. 

1757- 

Art..  1425.  If  the  testator  leave  the  usufruct  of  a  part  of  his  property 
or  of  all  of  it  to  one  person,  and  the  naked  ownership  to  another,  the 
owner  and  the  usufructuary  shall  be  considered  as  one  person  for  the 
distribution  of  the  hereditary  and  testamentary  obligations  devolving 
upon  the  thing  subject  to  the  usufruct;  and  the  obligations  devolving 
upon  both  of  them  jointly,  shall  be  divided  between  them  according  to 
the  following  rules : 

1.  The  payment  of  the  debts  devolving  upon  the  thing  subject  to 
the  usufruct,  shall  be  borne  by  the  owner,  the  usufructuary  being 
under  the  obligation  of  paying  him  the  current  interest  upon  the 
amount  paid,  during  the  life  of  the  usufruct. 

2.  If  the  owner  should  not  agree  to  make  this  payment,  the  usufruc- 
tuary may  do  so,  and  upon  the  expiration  of  the  usufruct  he  shall  be 
entitled  to  receive  from  the  owner  a  return  of  the  principal,  without  any 
interest  whatsoever. 

3.  If  the  thing  subject  to  the  usufruct  be  sold  to  pay  a  mortgage  or 
pledge  placed  thereon  by  the  deceased,  the  provisions  of  article  1423 
shall  be  applied  to  the  usufructuary. 

669,  670,  856,  857,  1429. 

Art.  1426.  The  testamentary  charges  devolving,  upon  the  usufruc- 
tuary, or  upon  the  owner,  shall  be  satisfied  by  the  one  upon  whom  the 
testator  may  impose  them,  and  in  the  manner  prescribed  in  the  testa- 
ment ;  without  his  being  entitled  to  any  indemnity  or  interest  for  having 
satisfied  them  in  that  manner. 


301 

Art.  1427.  If  on  imposing  testamentary  charges  on  a  thing  in  usu- 
fruct, the  testator  should  not  determine  whether  the  owner  or  the  usu- 
fructuary shall  suffer* them,  the  provisions  of  article  1425  shall  be 
observed. 

But  if  the  charges  should  consist  of  periodical  pensions,  and  the  testa- 
tor should  not  have  ordered  otherwise,  they  shall  be  met  by  the  usufruc- 
tuary during  the  entire  term  of  the  usufruct,  and  he  shall  not  be  entitled 
to  reimbursement  from  the  owner  therefor. 

855. 

Art.  1428.  The  usufruct  constituted  in  the  partition  of  an  inheritance 
is  subject  to  the  rules  of  article  1425,  if  the  persons  interested  should  not 
have  agreed  otherwise. 

Art.  1429.  The  fiduciary  owner  and  the  cestui  que  trust  shall  in  every 
case  be  considered  as  a  single  person,  with  regard  to  the  other  assigns, 
for  the  distribution  of  the  hereditary  and  testamentary  debts  and 
charges,  and  the  division  of  the  debts  and  charges  shall  be  made  between 
the  two  in  the  following  manner : 

The  trustee  shall  bear  such  charges,  with  the  understanding  that  at 
the  proper  time  he  shall  be  reimbursed  by  the  cestui  que  trust  without 
any  interest  whatsoever. 

If  the  charges  should  be  periodical,  the  trustee  shall  bear  them,  with- 
out being  entitled  to  any  reimbursement  whatsoever. 

855,  1425- 

Art.  1430.  Testamentary  creditors  cannot  exercise  the  actions  which 
they  derive  under  the  testament,  except  in  accordance  with  article  141 7. 

If  in  the  partition  of  an  inheritance  the  legacies  should  be  distributed 
among  the  heirs  in  a  different  manner,  the  legatees  may  institute  their 
actions,  either  in  accordance  with  this  distribution,  or  in  accordance 
with  article  141 7,  or  in  accordance  with  the  agreement  of  the  heirs. 

1397,  1415,  1583  No.  4. 

Art.  1 43 1.  If  there  should  be  no  meeting  of  creditors,  nor  objection 
on  the  part  of  a  third  person,  the  hereditary  creditors  shall  be  paid  as 
they  appear,  and  after  the  hereditary  creditors  shall  have  been  paid,  the 
legacies  shall  be  satisfied. 

But  when  the  inheritance  shall  not  appear  to  be  excessively  encum- 
bered, the  legacies  may  be  paid  immediately  to  such  legatees  as  offer 
a  bond  to  cover  what  may  devolve  upon  them  in  the  contribution  to  the 
debts. 

This  bond  shall  not  be  demandable  when  the  inheritance  is  manifestly 
exempt  from  charges  which  might  affect  the  legatees. 


302 

Art.  1432.  The  expenditures- necessary  for  the  delivery  of  the  things 
bequeathed,  shall  be  considered  as  a  part  of  the  legacies  themselves. 

Art.  1433.  Should  there  not  be  sufficient  in  the  succession  to  pay  all 
the  legacies,  they  shall  be  reduced  pro  rata. 

Art.  1434.  Titles  importing  a  confession  of  judgment  (fitulos  ejecu- 
tivos)  against  the  deceased,  shall  likewise  be  valid  against  the  heirs;  but 
the  creditors  cannot  institute  executory  process  or  levy  execution,  until 
eight  days  after  judicial  notice  of  their  titles. 


TITLE  XII. 

Of  the  Benefit  of  Separation. 

Art.  1435.  The  hereditary  creditors  and  the  testamentary  creditors 
may  request  that  the  property  of  the  deceased  be  not  confounded  with 
the  property  of  the  heir ;  and  by  virtue  of  this  benefit  of  separation  they 
shall  have  a  right  to  secure  performance  of  their  hereditary  or  testamen- 
tary obligations  from  the  property  of  the  deceased,  with  preference  over 
the  debts  of  the  heir  himself. 

1304,  1316,  2507. 

Art.  1436.  In  order  that  the  benefit  of  separation  may  be  obtained 
it  is  not  necessary  that  what  is  owed  be  immediately  demandable ;  it  is 
sufficient  that  it  be  due  on  a  day  certain  or  under  a  condition. 

Art.  1437.  The  right  of  each  creditor  to  demand  the  benefit  of  separa- 
tion subsists  as  long  as  his  credit  has  not  prescribed ;  but  it  shall  not  lie 
in  the  two  following  cases : 

1 .  When  the  creditor  has  recognized  the  heir  as  the  debtor  by  accept- 
ing a  note,  pledge,  mortgage,  or  security  of  said  heir,  or  a  partial  pay- 
ment of  the  debt. 

2.  When  the  property  of  the  succession  has  already  left  the  hands  of 
the  heir,  or  has  been  confounded  with  the  property  of  the  latter,  so  that  it 
it  is  impossible  to  identify  it. 

1476. 

Art.  1438.  The  creditors  of  the  heir  shall  not  have  the  right  to  demand 
the  separation  of  property  referred  to  in  the  preceding  articles,  for  the 
benefit  of  their  credits. 


303 

Art.  1439.  The  separation  of  patrimony  having  been  obtained  by  any 
of  the  creditors  of  the  succession,  it  shall  benefit  the  other  creditors  of 
the  same  who  invoke  it,  and  whose  credits  have  not  prescribed,  or  who 
are  not  included  in  the  case  of  No.  1,  of  article  1437. 

The  surplus,  if  there  be  any,  shall  be  added  to  the  property  of  the  heir 
in  order  to  satisfy  his  own  creditors,  with  whom  the  creditors  of  the  suc- 
cession who  do  not  enjoy  the  benefit  shall  be  joined. 

Art.  1440.  The  hereditary  or  testamentary  creditors  who  shall  have 
obtained  the  separation  or  availed  themselves  thereof,  in  accordance 
with  the  first  paragraph  of  the  preceding  article,  shall  not  have  a  right 
of  action  against  the  property  of  the  heir,  until  the  property  to  which 
said  benefit  gave  them  a  preferred  right  shall  have  been  exhausted ;  but 
even  then  the  other  creditors  of  the  heir  may  oppose  this  action  until  the 
total  of  their  credits  is  paid  them. 

Art.  i  44  i.  The  alienations  of  property  of  the  deceased,  made  by  the 
heir,  within  six  months  following  the  opening  of  the  succession,  and  the 
purpose  of  which  should  not  have  been  the  payment  of  hereditary  or 
testamentary  credits,  may  be  rescinded  at  the  instance  of  any  of  the 
hereditary  or  testamentary  creditors  enjoying  the  benefit  of  separation. 
The  same  applies  to  the  constitution  of  special  mortgages. 

767,  862  par.  2,  1295,  1451  par.  2,  1750,  2491. 

Art.  1442.  If  there  be  real  property  in  the  succession,  the  decree 
granting  the  benefit  of  separation  shall  be  recorded  upon  the  register  or 
registers  which  maybe  proper  inviewvof  the  situation  of  said  property, 
with  a  statement  of  the  estates  to  which  the  benefits  extends. 


304 


TITLE  XIII. 

Of  Donations  Inter  Vivos. 

Art.  1443.  A  donation  inter  vivos  is  an  act  by  which  a  person  trans- 
fers, gratuitously  and  irrevocably,  a  part  of  his  property  to  another  per- 
son, who  accepts  it. 

1244,  1245,  1246,  492,  1712,  2301,  164,  125,  150,  1259,  1258,  1482 
to  1489. 

Art.  1444.  Any  person  whom  the  law  shall  not  have  declared  incapa- 
ble, is  capable  of  donating  inter  vivos. 

1445,  1503,  1504,  1851. 

Art.  1445.  Those  who  do  not  have  the  free  administration  of  their 
property  are  unable  to  donate ;  excepting  in  the  cases  and  with  the  requi- 
sites prescribed  by  law. 

304,491,492,  2165,  1844. 

Art.  1446.  Any  person  whom  the  law  has  not  declared  incapable,  is 
capable  of  receiving  inter  vivos. 

Art.  1447.  A  donation  inter  vivos  cannot  be  made  to  a  person  who 
does  not  exist  at  the  moment  of  the  donation. 

If  a  donation  be  made  under  a  suspensive  condition,  it  shall  also  be 
necessary  that  the  person  exist  at  the  time  of  the  fulfillment  of  the  condi- 
tion, with  the  exceptions  mentioned  in  paragraphs  3  and  4  of  article 
1020.* 

93- 

Art.  1448.  The  incapacities  to  receive  inheritances  and  legacies,  ac- 
cording to  article  102 1,  extend  to  donations  inter  vivos. 

Art.  1449.  A  donation  made  to  the  curator  of  the  donor  is  likewise 
null,  if  made  before  the  curator  shall  have  filed  the  accounts  of  his  cura- 
torship,  and  paid  the  balance,  if  there  be  any,  against  him. 

491. 

Art.  1450.  A  donation  inter  vivos  is  not  presumed  excepting  in  the 
cases  expressly  prescribed  by  law. 

1454,  2317,  2373,  1713. 

*  The  citation  in  the  last  paragraph  to  art.  1020  is  incorrect,  as  this  article  does  not 
contain  the  3d  and  4th  paragraphs  mentioned,  but  only  two.  Art.  1019  should  have 
been  cited,  the  corresponding  one  being  cited  in  the  Code  of  Chile 


3<>5 

Art.  145  i.  He  who  repudiates  an  inheritance,  legacy,  or  donation,  or 
fails  to  comply  with  a  condition  to  which  an  eventual  right  is  subordi- 
nated, does  not  donate,  even  though  he  do  so  with  the  object  of  bene- 
fiting a  third  person. 

The  creditors,  nevertheless,  may  be  authorized  by  the  Judge  to  sub- 
stitute themselves  for  a  debtor  who  does  so,  to  the  extent  of  their  credits; 
and  the  surplus,  if  there  be  any,  shall  redound  to  the  benefit  of  the  third 
person. 


862  par.  2,  1295,  1441,  2491,  1668. 

Art.  1452.  There  is  no  donation  in  a  loan  for  use  (commodatum)  of 
any  object,  even  though  its  use  and  enjoyment  is  usually  given  in  lease. 

Nor  is  there  any  in  a  loan  for  consumption  (mutuum)  without  interest. 

But  there  is  a  donation  in  the  remission  or  cession  of  a  right  to  receive 
the  interest  of  a  principal  placed  out  at  interest  or  as  a  rent  charge  (censo) . 

2200,  1 71 2,  492. 

Art.  1453.  Personal  gratuitous  services  do  not  constitute  a  donation, 
even  though  they  be  of  a  character  which  are  ordinarily  paid. 

Art.  1454.  He  who  becomes  surety  or  constitutes  a  pledge  or  mort- 
gage in  favor  of  a  third  person,  does  not  make  him  a  donation ;  nor  does 
the  person  who  exonerates  the  surety  of  his  obligations,  or  remits  a 
pledge  or  mortgage  while  the  debtor  is  solvent;  but  he  who  remits  a 
debt  or  knowingly  pays  what  he  really  does  not  owe,  makes  a  donation. 

2317,  1711,  1713. 

Art.  1455.  There  is  no  donation  if,  while  there  is  a  diminution  of  the 
patrimony  on  one  hand,  there  is  no  increase  on  the  other;  as  when  a 
donation  is  made  for  an  object  which  consumes  the  amount  of  the  thing 
donated,  and  from  which  the  donee  does  not  derive  any  appreciable  ad- 
vantage in  money. 

Art.  1456.  There  is  no  donation  in  failing  to  interrupt  a  prescription. 

Art.  1457.  A  donation  inter  vivos  of  realty  of  any  kind  shall  not  be 
valid,  if  not  executed  by  a  public  instrument,  recorded  in  the  proper 
register  of  public  instruments. 

Nor  shall  the  remission  of  a  debt  of  property  of  the  same  kind  be  valid, 
without  this  requisite. 

1758,  1760,  1843,  756,  1500,  1857  par.  2. 

Art.  1458.  A  donation  inter  vivos  which  is  not  insinuated,  shall  only 
be  effective  to  the  value  of  two  thousand  pesos,  and  shall  be  null  as  to 
the  excess. 


306 

By  insinuation  is  understood  the  authorization  of  the  Judge  of  com- 
petent jurisdiction  requested  by  the  donor  or  donee. 

The  Judge  shall  authorize  the  donations  in  which  no  legal  provision 
is  violated. 

1712,  1462,  1463,  1467,  1491,  304,  491,  492,  1844. 

Art.  1459.  When  what  is  donated  is  the  right  to  receive  a  sum  period- 
ically, the  insinuation  shall  be  necessary,  if  the  total  of  the  amounts  to 
be  received  in  ten  years  exceeds  two  thousand  pesos. 

Art.  1460.  A  donation  subject  to  a  term  or  under  a  condition  shall 
not  produce  any  effect,  if  not  embodied  in  a  private  or  public  instru- 
ment expressing  the  condition  or  term;  and  there  shall  be  necessary 
therefor  the  public  instrument  and  the  insinuation  and  record  in  the 
same  terms  as  for  present  donations. 

1760,  1767,  1457,  1458. 

Art.  1 46 1.  Donations  with  an  onerous  consideration  (causa) ,  as  for  a 
person  to  adopt  a  career  or  state,  or  as  a  dowry,  or  by  reason  of  mar- 
riage, shall  be  executed  by  a  public  instrument,  expressing  the  consid- 
eration; and  should  this  not  be  done,  they  shall  be  considered  gratui- 
tous donations. 

Donations  with  an  onerous  consideration,  referred  to  in  the  preceding 
paragraph,  shall  be  subject  to  insinuation  according  to  the  provisions 
of  articles  1458,  1459  and  1460. 

1760,  1524. 

Art.  1462.  Donations  in  which  a  pecuniary  charge  is  imposed  upon 
the  donee,  or  one  which  can  be  estimated  at  a  specific  sum  of  money,  are 
subject  to  insinuation  only  with  the  deduction  of  the  charge. 

Art.  1463.  Donations  which,  with  the  proper  requisites,  spouses 
make  to  each  other  in  the  marriage  agreement,  do  not  require  insinu- 
ation nor  any  other  public  instrument  except  the  agreement,  whatever 
be  the  class  or  value  of  the  things  donated. 

1843,  1844. 

Art.  1464.  Donations  under  a  universal  title,  whether  of  all  or  of  a 
quota  of  the  property,  require  in  addition  to  the  insinuation  and  the 
execution  of  a  public  instrument,  and  the  record  in  a  proper  case,  a 
formal  inventory  of  the  property,  under  the  penalty  of  nullity. 

If  any  part  of  the  property  should  he  omitted  in  this  inventory,  it 
shall  be  understood  that  the  donor  reserves  the  same,  and  the  donee 
shall  have  no  right  to  demand  it. 

1201,  1008,  1867,  2082. 


307 

Art.  1465.  He  who  makes  a  donation  of  all  of  his  property,  must 
reserve  for  himself  what  is  necessary  for  his  congruous  maintenance; 
and  if  he  should  omit  to  do  so,  he  may  at  any  time  oblige  the  donee  to 
transfer  to  him  for  this  purpose,  from  the  property  donated  or  from  his 
own,  under  the  title  of  ownership  or  life  usufruct,  the  amount  that  may 
be  considered  reasonable,  in  proportion  to  the  amount  of  the  property 
donated. 

2082,  834  par.  3,  1 201. 

Art.  1466.  Donations  under  a  universal  title  do  not  extend  to  the 
future  property  of  the  donor,  even  though  the  latter  should  dispose  other- 
wise. 

1008,  1011,  1201,  1867,  2082. 

Art.  1467.  The  provisions  of  article  1458  include  donations  in  trust 
(fideicomisarias)  or  with  the  charge  of  making  restitution  to  a  third 
person. 

Art.  1468.  No  one  can  accept  except  in  person,  or  through  a  person 
holding  his  special  power  of  attorney  for  the  purpose,  or  a  general  power 
for  the  administration  of  his  property,  or  through  his  legal  representative. 

But  any  legitimate  ascendant  or  descendant  of  the  donee  may  accept 
for  him,  without  a  special  or  general  power,  provided  he  be  capable  of 
contracting  and  obligating  himself. 

The  rules  given  regarding  the  validity  of  acceptances  and  repudiations 
of  inheritances  or  legacies,  apply  to  donations. 

2142,  2158,  1637,  1282  et  seq.,  1298  et  seq.,  145 1  par.  2,  1307. 

Art.  1469.  Until  the  donation  inter  vivos  shall  have  been  accepted, 
and  the  donor  notified  of  the  acceptance,  the  latter  may  revoke  it  at  will. 


1494. 

Art.  1470.  Donations,  with  a  charge  to  make  restitution  to  a  third 
person,  become  irrevocable  through  the  acceptance  of  the  trustee,  in  ac- 
cordance with  article  1468. 

The  cestui  que  trust  cannot  accept  before  the  moment  of  the  restitu- 
tion ;  but  he  may  repudiate  before  that  moment. 

1283. 

Art.  147 1.  The  donation  having  been  accepted  by  the  trustee,  and  the 
donor  notified  of  the  acceptance,  the  two  may,  by  common  agreement, 
make  such  changes  in  the  fidcicommissum  as  they  may  desirej  substitute 
one  cestui  que  trust  for  another,  and  even  revoke  the  fidcicommissum 
entirely,  without  the  cestui  que  trust  having  a  right  to  object  thereto 


3o8 

In  order  to  alter  the  donation  in  these  terms,  they  shall  proceed  as  if 
an  entirely  new  act  were  involved. 

Art.  1472.  The  right  of  transmission,  established  for  a  succession 
mortis  causa,  in  article  10 15,  does  not  extend  to  donations  inter  vivos.*' 

Art.  1473.  The  rules  concerning  the  interpretation  of  testamentary 
assignments,  the  right  of  accretion,  substitutions,  terms,  conditions  and 
modes  relating  thereto,  apply  to  donations  inter  vivos. 

In  other  matters  not  opposed  to  the  provisions  of  this  Title,  the  general 
rules  governing  contracts  shall  be  observed. 

1 1 13,  1847,  1 1 28  par.  3,  1845,  1 530  etseq. 

Art.  1474.  The  donor  of  a  gratuitous  donation  enjoys  the  benefit  of 
competency  in  the  actions  which  the  donee  may  bring  against   him, 
whether  to  oblige  him  to  fulfill  a  promise  or  future  donation,  or  whether 
suing  him  for  the  delivery  of  the  things  which  have  been  presently  do 
nated  to  him. 

1480,  1684,  1685  No.  5. 

Art.  1475.  The  donee  under  a  universal  title  shall  have,  with  respect 
to  the  creditors  of  the  donor,  the  same  obligations  as  heirs ;  but  only  with 
regard  to  the  debts  prior  to  the  donation,  or  the  future  debts  which  do 
not  exceed  a  specified  sum,  determined  by  the  donor  in  the  instrument 
of  donation. 

1008,  1155,  1411. 

Art.  1476.  The  donation  of  all  the  property  or  of  a  quota  thereof,  or 
of  its  naked  ownership  or  usufruct,  does  not  deprive  the  creditors  of  the 
donor  of  the  rights  of  action  they  may  have  against  him;  unless  they 
accept  the  donee  as  the  debtor  expressly,  or  in  the  terms  of  article  1437, 
No.  1. 

Art.  1477.  In  a  donation  under  a  singular  title,  the  charge  may  be  im- 
posed upon  the  donee  of  paying  the  debts  of  the  donor,  provided  that  a 
determined  sum  be  stated  to  which  this  charge  is  to  extend. 

The  creditors,  nevertheless,  shall  retain  their  rights  of  action  against 
the  original  debtor,  as  in  the  case  of  the  preceding  article. 

Art.  1478.  The  liability  of  the  donee  with  regard  to  the  creditors  of 
the  donor,  shall  in  no  case  extend  beyond  the  value  of  the  things  donated 
at  the  time  of  the  donation,  this  value  appearing  in  a  formal  inventory 
or  in  another  authentic  instrument. 

The  same  extends  to  the  liability  of  the  donee  for  the  other  charges 
which  may  have  been  imposed  upon  him  in  the  donation. 

1304,  471  etseq.,  1310,  1822. 
*  The  citation  should  be  to  article  1014  instead  of  1015. 


309 

Art.  1479.  The  donee  of  a  gratuitous  donation  has  no  action  of  war- 
ranty, even  though  the  donation  shall  have  begun  by  a  promise. 

Art.  1480.  Donations  with  an  onerous  consideration  entitle  to  no 
action  of  warranty  for  eviction,  excepting  when  the  donor  shall  have 
given  a  thing  belonging  to  another,  knowingly. 

Nevertheless,  if  pecuniary  charges  have  been  imposed  upon  the  donee, 
or  charges  which  can  be  estimated  in  money,  he  shall  always  have  the 
right  to  recover  what  he  may  have  disbursed  in  their  execution,  with  the 
current  interest,  which  does  not  appear  to  be  set  off  with  the  natural  and 
civil  fruits  of  the  things  donated. 

The  benefit  of  competency  of  the  donor  ceases  in  so  far  as  this  reim- 
bursement is  concerned. 

1492,  1909,  1474. 

Art.  1 48 1.  A  donation  inter  vivos  is  not  subject  to  resolution  by  the 
birth  of  one  or  more  legitimate  children  to  the  donor  after  it  was  made, 
unless  this  resolutory  condition  shall  have  been  expressed  in  the  public 
instrument  of  the  donation. 

Art.  1482.  Donations  are  subject  to  rescission  in  the  case  of  article 
1245. 

Art.  1483.  If  the  donee  should  delay  executing  what  may  have  been 
imposed  upon  him  in  the  donation,  the  donor  shall  have  the  right  to 
oblige  the  donee  to  execute  it,  or  to  have  the  donation  rescinded. 

In  the  latter  case,  the  donee  shall  be  considered  a  possessor  in  bad 
faith  with  regard  to  the  restitution  of  the  things  donated  and  the  fruits, 
provided  that  he  should  have  failed  to  comply  with  the  obligation  im- 
posed, without  grave  cause. 

The  donee  shall  be  allowed  what  he  may  have  disbursed  up  to  that 
time  in  the  discharge  of  his  obligation,  and  which  may  benefit  the  donor. 

1608,  1546,  963,  964,  etseq.,   1545,  1746,  1747. 

Art.  1484.  The  rescissory  action,  granted  by  the  preceding  article, 
shall  terminate  four  years  from  the  date  upon  which  the  donee  shall  have 
defaulted  in  the  fulfillment  of  the  obligation  imposed. 

1750,  i75i,  1487- 

Art.  1485.  A  donation  inter  vivos  may  be  revoked  for  ingratitude. 
An  act  of  ingratitude  shall  be  any  offensive  act  on  the  part  of  the  donee 
which  would  make  him  unworthy  to  inherit  from  the  donor. 

1025,  1266,  1267,  1268,  414  pars.  3  and  4. 

Art.  i486.  In  the  restitution  which  a  donee  may  be  obliged  to  make 
by  reason  of  ingratitude,  he  shall  be  considered  as  a  possessor  in  bad 


3i6 

faith  from  the  time  of  the  commission  of  the  offensive  act  which  has 
given  rise  to  the  revocation. 

Art.  1487.  An  action  for  revocation  prescribes  in  four  years,  counted 
from  the  date  the  donor  had  knowledge  of  the  offensive  act,  and  is  ex- 
tinguished by  his  death,  unless  it  shall  have  been  brought  judicially  dur- 
ing his  lifetime,  or  that  the  offensive  act  shall  have  produced  the  death 
of  the  donor,  or  taken  place  thereafter. 

In  such  cases  the  action  for  revocation  shall  be  transmitted  to  the 
heirs. 

1750,  I75ii  H84- 

Art.  1488.  When  the  donor,  by  reason  of  having  lost  his  mind,  or 
through  another  impediment,  is  unable  to  institute  the  action  granted 
him  by  article  1485,  it  may  be  brought  in  his  name,  during  his  lifetime, 
and  within  the  period  fixed  in  the  preceding  article,  not  only  by  his 
guardian,  but  by  any  of  his  legitimate  descendants  or  ascendants,  or  by 
his  spouse. 

Art.  1489.  The  resolution,  rescission  or  revocation  referred  to  in  the 
preceding  articles,  shall  not  give  a  right  of  action  against  third  possessors 
nor  for  the  extinction  of  mortgages,  servitudes  or  other  rights  constituted 
upon  the  things  donated,  excepting  in  the  following  cases : 

1 .  When  in  the  public  instrument  embodying  the  donation  (recorded 
in  the  proper  register,  if  the  class  of  the  things  donated  should  make  this 
necessary),  the  donee  shall  have  been  forbidden  to  alienate  them,  or  the 
condition  shall  have  been  expressed. 

2 .  When  before  the  alienations  or  the  constitution  of  the  rights  referred 
to,  the  third  persons  interested  have  been  notified  that  the  donor  or 
another  person  in  his  name  intends  to  institute  a  resolutory  or  rescissory 
action,  or  for  revocation,  against  the  donee. 

3.  When  the  things  donated  were  alienated  or  the  said  rights  con- 
stituted, after  the  institution  of  the  action. 

A  donor  who  should  not  avail  himself  of  this  right  of  action  against 
third  persons,  may  demand  of  the  donee  the  price  of  the  things  alienated, 
according  to  the  value  they  may  have  had  at  the  date  of  the  alienation. 

1548,  1521  No.  4. 

Art.  1490.  By  remuneratory  donations  shall  be  understood  those 
expressly  made  in  remuneration  of  specific  services,  provided  that  the 
latter  are  of  a  class  which  it  is  customary  to  pay. 

If  it  should  not  appear  in  a  public  or  private  instrument,  as  the  case 
may  be,  that  the  donation  was  a  remuneratory  one,  or  if  the  services  are 
not  specified  in  the  instrument,  the  donation  shall  be  considered  a  gratui- 
tous one. 

Art.  1 491.  Remuneratory  donations,  in  so  far  as  they  are  equivalent 


3ii 

to  the  value  of  the  services  remunerated,  are  not  subject  to  rescission  or 
revocation,  and  must  be  insinuated  in  so  far  as  they  exceed  such  value. 
Art.  1492.  A  donee  who  shall  suffer  eviction  of  the  thing  which  may 
have  been  donated  to  him  in  remuneration,  shall  have  the  right  to  de- 
mand payment  for  the  services  which  the  donor  intended  to  remunerate 
thereby,  in  so  far  as  it  shall  not  appear  that  they  have  been  offset  by  the 
fruits. 

1480,  1909. 

Art.  1493.  In  other  particulars,  remuneratory  donations  are  subject 
to  the  rules  of  this  Title. 


313 


BOOK    FOURTH. 

OF   OBLIGATIONS  IN   GENERAL  AND   OF 
CONTRACTS. 

TITLE  I. 
Definitions. 

Art.  1494.  Obligations  arise  either  from  the  real  convergence  of  the 
wills  of  two  or  more  persons,  as  in  contracts  or  agreements;  from  a 
voluntary  act  on  the  part  of  the  person  binding  himself,  as  in  the  accept- 
ance of  an  inheritance  or  legacy  and  in  all  quasi  contracts;  from  the 
consequence  of  an  act  which  has  inflicted  injury  or  damage  to  another 
person,  as  in  crimes;  or  by  operation  of  the  law,  as  between  parents 
and  the  children  of  a  family. 

1469,  1664,  2302.     34  of  law  57  of  1887. 

Art.  1495.  A  contract  or  convention  is  an  act  by  which  one  party  obli- 
gates himself  to  another  to  give,  to  do,  or  not  to  do,  something.  Each 
party  may  consist  of  one  or  several  persons. 

Art.  1496.  A  contract  is  unilateral  when  one  of  the  parties  obligates 
himself  to  another  who  does  not  contract  any  obligation;  and  bilateral 
when  the  contracting  parties  mutually  obligate  themselves. 

Art.  1497.  A  contract  is  gratuitous  or  of  beneficence,  when  the  object 
is  the  benefit  of  one  of  the  parties  only,  the  other  suffering  the  charge; 
and  onerous  when  the  object  is  the  benefit  of  both  contracting  parties, 
each  obligating  himself  for  the  benefit  of  the  other. 

Art.  1498.  An  onerous  contract  is  commutative,  when  each  of  the 
parties  obligates  himself  to  give  or  to  do  something  which  is  considered 
the  equivalent  of  what  the  other  party  is  to  give  or  do  in  consideration 
thereof;  and  if  the  equivalent  consists  in  an  uncertain  contingency  of 
profit  or  loss,  it  is  called  aleatory. 

1518  par.  2,  1869,  1969,  2282. 

Art.  1499.  The  contract  is  principal  when  it  subsists  by  itself,  without 
the  necessity  of  another^ agreement,  and  accessory  when  its  object  is  to 
assure  the  fulfillment  of  a  principal  obligation,  in  such  manner  that  it 
cannot  subsist  without  it. 

Art.  1500.  A  contract  is  real  when,  in  order  to  be  perfect,  the  tradi- 
tion of  the  thing  to  which  it  refers  is  necessary ;  it  is  solemn  when  it  is 
subject  to  the  observance  of  certain  formalities  of  a  special  character,  so 
that  without  them  it  would  not  produce  any  legal  effect ;  and  it  is  con- 
sensual when  it  is  perfected  by  the  mere  consent. 


3*4 

Art.  i  50  i.  In  every  contract  are  distinguished  the  things  which  are 
of  its  essence,  of  its  nature  and  those  purely  accidental.  Of  the  essence 
are  those  things  without  which  it  would  either  produce  no  effect  what- 
soever or  change  the  character  of  the  contract ;  of  the  nature  of  a  con- 
tract are  those  which  not  being  of  the  essence  thereof,  are  undetslood  to 
belong  to  it  without  the  necessity  of  a  special  clause ;  and  those  things 
are  accidental  in  a  contract,  which  are  neither  of  its  essence  nor  of  its 
nature,  and  which  are  added  thereto  by  means  of  special  clauses. 

1603.  T62i  par.  2. 


TITLE  11. 

Of  Acts  and  Oeclarations  of  Will. 

Art.  1502.  In  ^rder  that  a  person  may  obligate  himself  to  another  by 
an  act  or  declaration  of  will,  it  is  necessary,  1.  That  he  be  legally  capable ; 
2.  That  he  consent  in  said  act  or  declaration  and  that  his  consent  is  not 
subject  to  a  vice ;  3.  That  it  involve  a  licit  object ;  4.  That  it  have  a  licit 
consideration  (causa). 

The  legal  capacity  of  a  person  consists  in  being  able  to  obligate  him- 
self alone,  and  without  the  ministry  or  authority  of  another. 

1636,  1740  etseq. 

Art.  1503.  Every  person  is  legally  capable,  excepting  those  which  the 
law  declares  incapable. 

Art.  1504.  The  insane,  those  who  have  not  attained  the  age  of  pu- 
berty and  the  deaf  and  dumb,  who  cannot  make  themselves  understood 
in  writing,  are  absolutely  incapable. 

Their  acts  do  not  produce  even  natural  obligations  and  they  do  not 
admit  of  security. 

Minor  adults,  who  have  not  obtained  qualification  as  to  age ;  spend- 
thrifts who  are  under  interdiction  from  administering  their  property ; 
married  women,  and  juristic  persons,  are  also  incapable.  But  the  inca- 
pacity of  these  four  classes  of  persons  is  not  absolute,  and  their  acts  may 
be  valid  under  certain  circumstances  and  under  certain  relations  deter- 
mined by  the  laws. 


315 

In  addition  to  these  incapacities,  there  are  other  special  ones  which 
consist  in  the  prohibition  which  the  law  has  imposed  upon  certain  per- 
sons to  execute  certain  acts. 

1741,  1527,  1689,  1529,  2314,  2384  par.  3,  182,  2368,  633  et  seq., 
183  par.  2,  192,  261,  264,  290,  294,  301,  491  par.  2,  493,  528, 
784,  1747,  1777,  2243,  2262,  1 196,  1852.  24  to  27  of  law  57 
of  1887.     27,  80,  81  of  law  153  of  1887. 

Art.  1505.  What  a  person  performs  in  the  name  of  another,  being 
empowered  by  the  said  person  or  the  law  to  represent  him,  produces 
with  regard  to  the  principal  the  same  effects  as  if  he  had  himself  entered 

into  the  contract. 

» 

741  par.  4,  742,  744,  2154,  2J86,  640,  1633,  2142,  2157,  2162,  782. 

Art.  1506.  Any  one  may  make  a  stipulation  in  favor  of  a  third  person, 
even  though  he  have  no  right  to  represent  him ;  but  said  third  person 
only  may  demand  what  has  been  stipulated ;  and  until  his  express  or 
implied  acceptance  is  given,  the  contract  is  revocable  at  the  will  of  the 
parties  thereto. 

Acts  which  could  have  been  performed  only  by  virtue  of  the  contract, 
constitute  an  implied  acceptance. 

1494,  66,  1298,  1299,  1573  par.  2,  2150,  782. 

Art.  1507.  Whenever  one  of  the  contracting  parties  should  engage 
that  a  third  person,  of  whom  he  is  not  the  legal  representative,  shall  give, 
do  or  not  do  something,  said  third  person  shall  not  contract  any  obliga- 
tion, except  by  virtue  of  his  ratification ;  and  if  said  party  does  not  ratify, 
the  other  contracting  party  shall  have  an  action  for  damages  against  the 
person  who  made  the  promise  or  engagement. 

1593  pars.  2  and  3,  2186. 

Art.  1508.  The  vices  to  which  the  consent  may  be  subject  are  error, 
intimidation  and  fraud. 

1750. 

Art.  1509.  An  error  upon  a  point  of  law  does  not  vitiate  the  consent. 

9,  768  par.  4,  2315,  2317. 

Art.  1 5 10.  An  error  of  fact  vitiates  the  consent  if  it  refers  to  the  kind 
of  act  or  contract  executed  or  celebrated,  as  if  one  of  the  parties  shall 
understand  a  loan  and  the  other  a  donation ;  or  to  the  identity  of  the 
specific  thing  in  question,  as  if  in  a  sale  contract  the  vendor  intends  to 


316 

sell  a  certain  and  determined  thing,  and  the  vendee  intends  to  purchase 
another. 

1769,  768  par.  3,  1 1 17,  1 190,  1524,  2313,  746,  2480. 

Art.  1 5 1 1 .  An  error  of  fact  likewise  vitiates  the  consent  when  the 
substance  or  essential  quality  of  the  object  involved  in  the  act  or  contract 
is  different  from  what  is  believed ;  as  if  one  of  the  parties  supposes  that 
the  object  is  a  bar  of  silver,  and  it  really  is  a  mass  of  some  other  similar 
metal. 

An  error  with  regard  to  any  other  quality  of  the  thing  does  not  vitiate 
the  consent  of  the  contracting  parties,  unless  that  quality  is  the  prin- 
cipal motive  for  one  of  them  entering  into  the  contract,  and  such  motive 
was  known  to  the  other  party. 

746,  2480. 

Art.  15 1 2.  An  error  as  to  the  person  with  whom  it  is  intended  to 
enter  into  a  contract,  does  not  vitiate  the  consent,  unless  the  considera- 
tion of  this  person  is  the  principal  cause  of  the  contract. 

But  in  such  case  the  person  with  whom  a  contract  has  been  erron- 
eously entered  into,  shall  have  the  right  to  be  indemnified  for  the  damage 
he  may  have  incurred  in  good  faith  through  the  nullity  of  the  contract. 

746,  140  No.  1,  142,  2241,  2479. 

Art.  1 5 13.  Force  does  not  vitiate  the  consent  unless  it  is  capable  of 
producing  a  strong  impression  upon  a  person  of  sound  mind,  taking  into 
consideration  his  age,  sex  and  condition.  Force  of  this  character  is  con- 
sidered any  act  which  imbues  a  person  with  a  just  fear  of  being  himself, 
his  spouse  or  any  of  his  ascendants  or  descendants  exposed  to  an  irrepa- 
rable and  grave  injury. 

Reverential  fear,  that  is,  the  simple  fear  of  displeasing  the  persons  to 
whom  submission  and  respect  is  due,  is  not  sufficient  to  vitiate  consent. 

2476,  1029  par.  2. 

Art.  15 14.  In  order  that  thejbrce  vitiate  the  consent,  it  is  not  neces- 
sary that  it  be  exercised  by  the  person  benefited  thereby ;  it  is  sufficient 
that  the  force  shall  have  been  employed  by  any  person  for  the  purpose 
of  obtaining  the  consent. 

2476. 

Art.  15 15.  Fraud  does  not  vitiate  the  consent,  excepting  when  it  is 
the  work  of  one  of  the  parties,  and  when  in  addition  it  is  clearly  evident 
that  without  it  he  would  not  have  entered  into  the  contract. 


317 

In  other  cases,  fraud  gives  rise  only  to  an  action  for  damages  against 
the  person  or  persons  who  have  been  guilty  thereof,  or  who  have  benefited 
thereby;  against  the  former  for  the  entire  value  of  the  damages,  and 
against  the  latter  to  the  extent  of  the  benefit  they  may  have  derived 
therefrom. 

63  pars.  2  and  6,  2476,  418,  983,  2343  par.  2.    ' 

Art.  1 5 16.  Fraud  is  presumed  only  in  the  cases  specially  prescribed 
by  law.     In  other  cases  it  must  be  proved. 

63  pars.  2  and  6,  694  par.  3,  1025  subdivision  5,  1358,  2284,  769. 

Art.  1 5 1 7.  Every  declaration  of  will  must  have  for  object  one  or  more 
things,  which  it  is  desired  to  give,  do  or  not  do.  The  mere  use  of  the 
thing  or  its  seizin  cannot  be  the  object  of  the  declaration. 

1513^^.,  1524. 

Art.  15 1 8.  Not  only  can  things  which  exist  be  the  object  of  a  declara- 
tion of  will,  but  also  those  which  are  expected  to  exist ;  but  it  is  neces- 
sary that  either  be  commercial  and  that  they  be  determined,  at  least, 
with  regard  to  their  genus. 

The  amount  may  be  uncertain,  provided  that  the  act  or  contract  fixes 
rules  and  contains  data  which  serve  to  determine  it. 

If  the  object  be  an  act,  it  shall  be  necessary  that  it  be  physically  and 
morally  possible.  That  which  is  contrary  to  nature  is  physically  im- 
possible, and  that  prohibited  by  the  laws  or  contrary  to  good  morals  or 
public  order,  is  morally  impossible. 

1 151,  1532,  1498,  1864  par.  2. 

Art.  1 5 19.  There  is  an  illicit  object  in  all  that  which  is  contrary  to  the 
public  law  of  the  Nation.  Thus,  a  promise  to  submit  to  a  jurisdiction 
not  recognized  by  the  laws  thereof,  is  null  on  account  of  the  vice  of  the 
object. 

16. 

Art.  1520.  The  right  to  succeed  mortis  causa  to  a  living  person  cannot 
be  the  object  of  a  donation  or  contract,  even  when  the  consent  of  the 
person  himself  shall  be  present. 

Agreements  between  a  person  who  owes  a  legitime  and  the  forced  heir, 
with  regard  to  the  same  legitime  or  to  betterments,  are  subject  to  the 
special  rules  contained  in  the  Title  Of  Forced  Assignments. 

1451,  1262  par.  2,  1283. 


3*8 

Art.  i 52 i.  There  is  a  licit  object  in  the  alienation — 

1.  Of  things  which  are  not  in  commerce. 

2.  Of  rights  or  privileges  which  cannot  be  transferred  to  another 
person. 

3.  Of  things  attached  by  a  judicial  decree,  unless  the  Judge  should 
authorize  it  or  the  creditor  consent  thereto. 

4.  Of  specific  things  the  ownership  of  which  is  in  litigation,  without 
the  permission  of  the  Judge  taking  cognizance  of  the  litigation. 

1636  No.  2,  1720  par.  2,  1489  No.  3,  1570,  2412,  2439,  2490. 

Art.  1522.  An  agreement  not  to  demand  more  by  reason  of  an  ap- 
proved account,  is  not  valid  with  regard  to  the  fraud  contained  therein, 
if  it  shall  not  have  been  expressly  condoned.  The  condonation  of  a 
future  fraud  is  invalid. 

15,  198,  1950,  2181  par.  3,  1366  par.  2. 

Art.  1523.  There  is  also  an  illicit  object  in  every  contract  prohibited 
by  law. 

1865  par.  2,  2235,  2473. 

Art.  1524.  There  can  be  no  obligation  without  a  real  and  licit  cause; 
but  it  is  not  necessary  to  express  it.  Mere  liberality  or  beneficence  is 
sufficient  cause. 

By  cause  (consideration)  is  understood  the  motive  which  induces  the 
act  or  contract ;  and  by  illicit  cause,  that  prohibited  by  the  law,  or  con- 
trary to  good  morals  and  public  order. 

Thus,  the  promise  to  give  something  in  payment  of  a  debt  which  does 
not  exist,  lacks  a  cause ;  and  the  promise  to  give  something  in  compen- 
sation for  the  commission  of  a  crime  or  an  immoral  act,  has  an  illicit 
cause. 

1510,  1511,  1517. 

Art.  1525.  A  suit  cannot  be  brought  for  the  recovery  of  that  which 
may  have  been  given  or  paid  knowingly  for  an  illicit  object  or  cause. 

2317. 

Art.  1526.  The  acts  or  contracts  which  the  law  declares  to  be  in- 
valid, shall  not  cease  to  be  so  by  reason  of  the  clauses  introduced  therein 
renouncing  the  action  for  nullity. 

6  par.  2,  1777  par.  3,  15,  1950, 


3*9 


TITLE  III. 
Of  Civil  Obligations  and  of  those  Merely  Natural. 

Art.  1527.  Obligations  are  civil  or  merely  natural. 

Civil  obligations  are  those  which  give  a  right  to  enforce  their  per- 
formance. 

Natural  obligations  are  those  which  do  not  confer  a  right  to  enforce 
their  performance,  but  which  upon  fulfillment  authorize  the  retention 
of  what  has  been  given  or  paid,  by  reason  thereof. 

Such  are : 

1.  Those  contracted  by  persons  who,  although  having  sufficient 
judgment  and  discernment,  are,  nevertheless,  incapable  of  obligating 
themselves  according  to  the  laws,  as  a  married  woman  in  cases  in  which 
she  requires  the  authority  of  her  husband,  and  minor  adults  not  quali- 
fied as  to  age. 

2.  Civil  obligations  extinguished  by  prescription. 

3.  Those  arising  from  acts  which  lack  the  formalities  required  by  law 
for  them  to  produce  civil  effects ;  as  that  to  pay  a  legacy,  imposed  by  a 
testament,  which  has  not  been  executed  in  due  form. 

4.  Those  which  have  not  been  admitted  in  court,  for  a  lack  of  evidence. 
In  order  that  restitution  may  not  be  demanded  by  virtue  of  these  four 

classes  of  obligations,  it  is  necessary  that  the  payment  shall  have  been 
made  voluntarily  by  one  who  had  the  free  administration  of  his  property. 

1 5 14  par.  3,  in  par.  2,  1747,  2314,  2400  No.  1. 

Art.  1528.  A  judicial  decision  which  does  not  admit  the  action 
brought  against  a  person  naturally  obligated,  does  not  extinguish  the 
natural  obligation. 

Art.  1529.  The  securities,  mortgages,  pledges  and  penal  clauses  con- 
stituted in  third  persons  for  the  security  of  these  obligations,  shall  be 
valid. 

2364. 


323 

TITLE  IV. 

Of  Conditional  and  Modal  Obligations. 

Art.  1530.  A  conditional  obligation  is  that  which  depends  upon  a  con- 
dition, that  is,  on  a  future  event,  which  may  or  may  not  occur. 

1 128  par.  2,  1906. 

Art.  1 53 1.  The  condition  is  positive  or  negative. 

The  positive  condition  consists  in  something  occurring;  the  negative, 
in  something  not  occurring. 

Art.  1532.  A  positive  condition  must  be  physically  and  morally 
possible. 

One  that  is  contrary  to  the  laws  of  physical  nature,  is  physically  im- 
possible ;  and  that  which  consists  in  the  commission  of  an  act  prohibited 
by  the  laws,  or  opposed  to  good  morals  or  to  public  order,  is  morally  im- 
possible. 

Those  conceived  in  unintelligible  terms  shall  also  be  considered  im- 
possible. 

I5i8par.3,  1123,  1124,  1147  et  seq.,  1170,  1537. 

Art.  1533.  If  the  condition  be  negative  of  a  thing  physically  impos- 
sible, the  obligation  is  pure  and  simple;  if  it  consist  in  the  creditor  ab- 
staining from  an  immoral  or  prohibited  act,  it  vitiates  the  disposition. 

Art.  1534.  A  potestative  condition  is  that  which  depends  on  the  will  of 
the  creditor  or  of  the  debtor;  a  casual  one,  that  which  depends  on  the 
will  of  a  third  person  or  the  result  of  chance ;  a  mixed  one,  that  which  de- 
pends partly  on  the  will  of  the  creditor  and  partly  on  the  will  of  a  third 
person  or  on  the  result  of  chance. 

Art.  1535.  Obligations  contracted  under  a  potestative  condition 
which  consists  in  the  mere  will  of  the  person  who  obligates  himself,  are 
null. 

If  the  condition  consists  in  a  voluntary  act  by  any  of  the  parties,  it 
shall  be  valid. 

1526,  1865  par.  2,  2093  par.  2. 

Art.  1536.  The  condition  is  called  suspensive  if,  until  it  is  performed, 
it  suspends  the  acquisition  of  a  right;  and  resolutory,  when  by  its  per- 
formance a  right  is  extinguished. 

1 148. 


321 

Art.  1537.  If  the  suspensive  condition  is  or  becomes  impossible,  it 
shall  be  considered  as  lapsed. 

The  same  rule  applies  to  conditions  the  sense  and  mode  of  fulfillment 
of  which  are  entirely  unintelligible. 

And  the  conditions  inductive  of  illegal  or  immoral  acts. 

A  resolutory  condition  which  is  impossible  from  its  nature,  or  unin- 
telligible, or  inductive  of  an  illegal  or  immoral  act,  shall  be  considered  as 
not  written. 

1151. 

ART.  1538.  The  rule  of  the  preceding  article,  first  paragraph,  applies 
even  to  testamentary  dispositions. 

Thus,  when  the  condition  is  an  act  which  depends  upon  the  will  of  the 
assign  and  on  the  will  of  another  person,  and  is  not  performed  on  account 
of  an  accident  which  makes  it  impossible,  or  because  the  other  person  on 
whose  will  it  depends  cannot  or  does  not  wish  to  perform  it,  it  shall  be 
considered  as  lapsed,  notwithstanding  the  fact  that  the  assign  shall,  on 
his  part,  have  been  ready  to  fulfill  it. 

Nevertheless,  if  the  person  obliged  to  give  the  assignment,  avails  him- 
self of  illicit  means  in  order  that  the  condition  may  not  be  fulfilled,  or 
that  another  person,  on  whose  will  in  part  its  fulfillment  consists,  does 
not  co-operate  with  the  former,  it  shall  be  considered  as  performed. 

1125,  1 130. 

Art.  1539.  A  positive  condition  shall  be  considered  to  have  lapsed  or 
a  negative  condition  fulfilled,  when  it  has  become  certain  that  the  event 
contemplated  therein  will  not  take  place,  or  when  the  time  within 
which  the  event  should  have  taken  place  has  expired  without  it  having 
occurred. 

Art.  1 540.  The  condition  must  be  performed  in  the  manner  in  which 
the  parties  have  probably  understood  that  it  should  be,  and  it  shall  be 
presumed  that  the  most  reasonable  manner  of  performing  it  is  that 
understood  by  the  parties. 

When,  for  example,  the  condition  consists  in  the  payment  of  a  sum  of 
money  to  a  person  under  tutorship  or  curatorship,  the  condition  shall 
not  be  considered  as  performed,  if  it  be  delivered  to  the  said  person,  and 
he  squanders  it. 

1618,  494,  1634,  1636. 

Art.  1 54  i.  Conditions  must  be  fulfilled  literally  in  the  manner  agreed 
upon. 

Art.  1542.  The  performance  of  a  conditional  obligation  cannot  be 
demanded  until  the  condition  is  entirely  fulfilled. 


322 

All  that  may  have  been  paid  before  the  performance  of  a  suspensive 
condition,  may  be  the  subject  of  a  suit  for  recovery  until  said  condition 
shall  have  been  performed. 

1376,   1128,   1138,  2313  et  seq. 

Art.  1543.  If  before  the  fulfillment  of  the  condition  the  thing  promised 
ceases  to  exist  without  the  fault  of  the  debtor,  the  obligation  is  extin- 
guished ;  and  if  through  the  fault  of  the  debtor,  the  debtor  is  bound  for 
the  price  and  the  indemnity  of  damages. 

If  the  thing  exists  at  the  time  of  the  fulfillment  of  the  condition,  it  is 
due  in  the  state  in  which  it  may  be,  the  creditor  being  benefited  by  the 
increase  or  improvement  which  the  thing  may  have  suffered,  without 
being  obliged  to  give  more  therefor,  and  suffering  its  deterioration  or 
diminution,  without  any  right  to  a  reduction  in  the  price;  unless  the 
deterioration  or  diminution  be  due  to  the  fault  of  the  debtor ;  in  which 
case  the  creditor  may  demand  either  that  the  contract  be  rescinded,  or 
that  the  thing  be  delivered,  and  in  addition  to  one  or  the  other,  he  shall 
be  entitled  to  recovery  of  damages. 

That  which  destroys  the  suitability  of  the  thing  for  the  object  to  which 
according  to  its  nature  or  according  to  the  agreement  it  is  destined,  shall 
be  understood  to  destroy  the  thing. 

1 193,  1606,  1607,  1876,  1 128,  1827,  63  par.  3,  1604,  64,  716,  1828, 
1941,  713  et  seq. 

Art.  1544.  The  resolutory  condition  having  been  performed,  what 
may  have  been  received  under  such  condition  must  be  restored,  unless 
the  latter  shall  have  been  imposed  in  favor  of  the  creditor  exclusively, 
in  which  case  the  latter  may,  if  he  desires,  renounce  it;  but  he  shall  be 
obliged  to  declare  his  determination,  if  the  debtor  requires  it. 

Art.  1545.  A  resolutory  condition  having  been  performed,  the  fruits 
received  in  the  intermediate  time  shall  not  be  due,  unless  the  law,  the 
testator,  the  donor  or  the  contracting  parties,  according  to  the  various 
cases,  shall  have  provided  otherwise. 

963  etseq.,  1483,  1746,  1747,  1948  par.  2. 

Art.  1546.  In  bilateral  contracts  the  resolutory  condition  is  involved 
in  the  event  of  the  non-performance  of  the  agreement  by  one  of  the  con- 
tracting parties. 

But  in  such  case  the  other  contracting  party  may  at  will  request  the 
resolution  or  the  performance  of  the  contract, with  indemnity  of  damages. 

1609,  1845  par.  2,  1846  par.  2,  1878,  2127,  2294,  1483,  1930,  1931, 
1936,  *937,  2059  Par.  2,  1613  et  seq. 


323 

Art.  1547.  If  he  who  owes  a  movable  thing  subject  to  a  term,  or 
under  a  suspensive  or  resolutory  condition,  shall  alienate  it,  there  shall 
be  no  right  of  revendication  against  third  possessors  in  good  faith. 

947,  1933,  1934,  1940,  2321. 

Art.  1548.  If  he  who  owns  an  immovable  under  a  condition  alienates 
it,  or  charges  it  with  a  mortgage  or  servitude,  the  alienation  or  charge 
cannot  be  resolved,  unless  the  condition  shall  have  been  included  in  the 
respective  recorded  title,  or  in  a  public  instrument. 

750,  1489,  1933,  1934,  1940,  1944  par.  2,  1760,  948,  2441. 

Art.  1549.  The  right  of  the  creditor  who  shall  die  in  the  interval 
between  the  conditional  contract  and  the  performance  of  the  condition, 
is  transmitted  to  his  heirs ;  and  the  same  occurs  with  the  obligation  of 
the  debtor. 

This  rule  does  not  apply  to  testamentary  assignments,  nor  to  dona- 
tions inter  vivos \ 

The  creditor  may  during  such  interval  request  the  necessary  conser- 
vative measures. 

1 136. 

Art.  1550.  The  provisions  of  Title  IV,  of  Book  III,  on  conditional 
or  modal  testamentary  assignments,  are  applied  to  agreements  in  so 
far  as  they  are  not  in  contravention  with  the  provisions  of  the  preceding 
articles. 


3?4 

TITLE  V. 
Of  Limited  Obligations. 

Art.  i 55  i.  A  term  (plazo)  is  the  period  fixed  for  the  performance  of 
the  obligation;  it  may  be  express  or  implied.  It  is  implied,  when  it  is 
indispensable  for  the  performance. 

The  Judge  cannot,  except  in  the  special  cases  fixed  by  law,  fix  a  term 
for  the  performance  of  an  obligation;  he  may  only  construe  that  con- 
ceived in  vague  or  obscure  terms,  with  regard  to  the  understanding  and 
application  of  which  the  parties  disagree. 

2225,  468  par.  2,  961,  1152,  1259,  1289,  1333,  1587,  2309  par.  2. 

Art.  1552.  What  is  paid  before  the  expiration  of  the  term,  is  not  sub- 
ject to  restitution. 

This  rule  does  not  apply  to  terms  which  have  the  value  of  conditions. 

1542,  2313. 

Art.  1553.  The  payment  of  the  obligation  cannot  be  demanded 
before  the  expiration  of  the  term,  excepting — 

1 .  Of  a  debtor  in  bankruptcy  or  notoriously  insolvent. 

2.  Of  a  debtor  whose  securities,  through  his  own  act  or  fault,  have 
become  extinguished  or  have  diminished  considerably  in  value.  But 
in  such  case  the  debtor  may  demand  the  benefit  of  the  term,  by  renew- 
ing or  increasing  the  securities. 

1882  last  par.,  2374,  2375,  2416,  2431,  2451,  1594. 

Art.  1554.  The  debtor  may  renounce  the  term,  unless  the  testator 
shall  have  disposed  or  the  parties  shall  have  agreed  otherwise,  or  that 
the  anticipation  of  the  payment  causes  a  creditor  a  damage  which  he 
manifestly  proposed  to  avoid  by  means  of  the  term. 

In  a  contract  of  loan  for  consumption  (mutuum)  at  interest,  the  pro- 
visions of  article  2225  shall  be  observed.* 

1654,  1649,  1709,  2379,  2013. 

Art.  1555.  What  has  been  said  in  Title  IV,  Book  III,  Of  Limited 
Assignments,  applies  to  contracts. 

*  We  believe  that  the  citation  toarticle  2225  is  incorrect  and  that  article  2229  should 
have  been  cited,  which  corresponding  one  is  cited  in  the  Code  of  Chile. 


3*5 

TITLE  VI. 
Of  Alternative  Obligations. 

Art.  1556.  An  alternative  obligation  is  that  by  which  several  things 
are  owed,  in  such  manner  that  the  performance  of  one  of  them  relieves 
from  the  performance  of  the  others. 

1583  No.  6,  1 78 1  No.  6,  last  par. 

Art.  1557.  In  order  that  the  debtor  may  be  discharged,  he  must  pay 
or  perform  in  its  totality  one  of  the  things  which  he  alternatively  owes ; 
and  he  cannot  oblige  the  creditor  to  receive  part  of  one  and  part  of  the 
other. 

The  debtor  has  the  right  of  option,  unless  the  contrary  shall  have  been 
agreed  upon. 

1564,  1624,  1654. 

Art.  1558.  If  the  option  be  the  debtor's,  the  creditor  cannot  specifi- 
cally demand  one  of  the  things  owed,  except  under  the  alternative  in 
which  they  are  owed. 

Art.  1559.  If  the  option  be  the  debtor's,  he  may  at  will  destroy  or 
alienate  any  of  the  things  which  he  alternatively  owes  as  long  as  one  of 
them  subsists. 

But  if  the  option  be  the  creditor's,  and  any  of  the  things  alternatively 
owed  him  cease  to  exist  through  the  fault  of  the  debtor,  the  creditor 
may,  at  his  will,  demand  the  price  of  this  thing  and  the  indemnity  of 
damages,  or  any  of  the  remaining  things. 

Art.  1560.  If  one  of  the  things  alternatively  promised  could  not  be 
the  object  of  the  obligation  or  becomes  destroyed,  the  alternative  obli- 
gation subsists  as  to  the  others;  and  if  one  only  remains,  the  debtor  is 
obligated  as  to  the  same. 

Art.  1 56 1.  If  all  the  things  comprised  in  the  alternative  obligation 
cease  to  exist,  without  the  fault  of  the  debtor,  the  obligation  is  extin- 
guished. 

If  through  the  fault  of  the  debtor,  he  shall  be  obligated  as  to  the  price 
of  any  of  the  things  he  may  select,  when  he  has  the  right  of  selection ;  or 
as  to  the  price  of  any  of  the  things  which  the  creditor  may  select,  when 
the  right  of  selection  is  vested  in  the  creditor. 

63  par.  3,  64,  1 193,  1543,  1563,  1604  par.  2,  1606,  1607,  1729 
et  seq. 


326 

TITLE  VII. 

Of  Optional  Obligations.* 
(De  las  Oblij»aciones  Facultativas.) 

Art.  1562.  An  optional  obligation  (obligation  facultativa)  is  that 
which  involves  a  determinate  thing,  but  the  debtor  being  granted  the 
power  to  pay  with  this  thing  or  another  designated. 

Art.  1563.  In  an  optional  obligation  the  creditor  has  no  right  to 
demand  a  thing  other  than  that  as  to  which  the  debtor  is  directly  obli- 
gated, and  if  said  thing  ceases  to  exist  without  the  fault  of  the  debtor 
and  before  the  time  agreed  for  its  delivery,  the  creditor  shall  not  have 
the  right  to  demand  anything. 

63  par.  3,  64,  1 561,  1604  par.  2. 

Art.  1564.  In  case  of  doubt  as  to  whether  the  obligation  is  alternative 
or  optional,  it  shall  be  considered  alternative. 

1557  par.  2,  1624. 


TITLE   VIII. 

Of  Indeterminate  Obligations. 
(I>e  las  Obligaciones  de  Genero.) 

Art.  1564.  Indeterminate  obligations  (obligaciones  de  genero)  are  those 
in  which  an  individual  of  a  particular  class  or  kind  is  owed. 

Art.  1566.  In  an  indeterminate  obligation,  the  creditor  cannot  de- 
mand specifically  any  individual,  and  the  debtor  is  discharged  therefrom 
upon  the  delivery  of  any  individual  of  the  kind,  provided  that  it  be  of 
at  least  an  average  quality. 

1172,  1173. 

Art.  1567.  The  loss  of  some  of  the  generic  things  does  not  extinguish 
the  obligation,  and  the  creditor  cannot  object  to  the  debtor  alienating  or 
destroying  them  while  others  subsist  for  the  satisfaction  of  what  he 
owes. 

*  These  obligations  are  not  mentioned  in  the  Spanish,  French,  Italian,  Mexican 
or  Dutch  Civil  Codes. 


32  7 


TITLE  IX. 
Of  Solidary  Obligations. 

Art.  1568.  In  general,  when  an  obligation  as  to  a  divisible  thing  has 
been  contracted  by  or  in  favor  of  a  number  of  persons,  each  of  the  debtors, 
in  the  first  case,  stands  obligated  only  as  to  his  part  or  quota  in  the  debt, 
and  each  of  the  creditors,  in  the  second  case,  has  the  right  to  demand 
only  his  part  or  quota  in  the  credit. 

But  by  virtue  of  the  agreement,  the  testament  or  the  law,  there  may 
be  demanded  of  each  of  the  debtors,  or  by  each  of  the  creditors,  the  total 
amount  of  the  debt,  and  then  the  obligation  is  solidary  or  in  solidum. 

The  solidarity  must  be  expressly  declared  in  all  cases  in  which  it  is  not 
established  by  the  law. 

637  par.  2,  2384,  2121  par.  2,  235,  418,  508,  599,  983,  1295,  1338,  1341, 
1583  No.  3,  1584,  1694,  1896,  2214,  2344. 

Art.  1569.  The  thing  which  is  solidarity  owed  to  a  number  or  by  a 
number,  must  be  one  and  the  same  thing,  even  though  it  be  owed  in 
different  manners ;  for  example,  purely  and  simply  with  regard  to  some, 
under  a  condition  or  a  term,  with  regard  to  others. 

Art.  1570.  The  debtor  may  make  the  payment  to  any  of  the  solidary 
creditors  he  may  select,  unless  he  shall  have  been  sued  by  one  of  them, 
in  which  case  he  must  make  the  payment  to  the  plaintiff. 

The  remission  of  the  debt,  compensation,  novation  between  the  debtor 
and  any  one  of  the  solidary  creditors,  extinguishes  the  debt  with  regard 
to  the  others,  in  the  same  manner  as  payment  would ;  provided  that  one 
of  the  latter  shall  not  have  already  sued  the  debtor. 

1521  No.  4,  1643,  1589,  1588. 

Art.  1 57  i.  The  creditor  may  proceed  against  all  of  the  solidary 
debtors  conjointly,  or  against  any  of  them,  at  his  option,  without  the 
latter  having  the  right  to  plead  the  benefit  of  division. 

2397,  1682. 

Art.  1572.  The  suit  brought  by  the  creditor  against  some  of  the 
solidary  debtors,  does  not  extinguish  the  solidary  obligation  of  any  of 
them,  excepting  as  to  the  part  which  may  have  been  satisfied  by  the 
defendant. 

Art.  1573.  The  creditor  may  expressly  or  impliedly  renounce  the 
solidarity  with  regard  to  one  of  the  solidary  debtors  or  with  regard  to 
all. 


32$ 

He  renounces  it  in  an  implied  manner  in  favor  of  one  of  them,  when  he 
shall  have  demanded  or  acknowledged  the  payment  of  his  part  or  quota 
of  the  debt,  this  being  stated  in  the  suit  or  in  the  receipt,  without  the 
special  reservation  of  the  solidarity,  or  without  the  general  reservation 
of  his  rights. 

But  this  express  or  implied  renunciation  does  not  extinguish  the 
solidary  action  of  the  creditor  against  the  other  debtors,  for  the  entire 
portion  of  the  credit  that  shall  not  have  been  satisfied  by  the  debtor  in 
whose  benefit  the  solidarity  was  renounced. 

The  solidarity  is  renounced  as  to  all  the  solidary  debtors,  when  the 
creditor  consents  to  the  division  of  the  debt. 

66. 

Art.  1574.  The  express  or  implied  renunciation  of  the  solidarity  of  a 
periodical  pension  is  limited  to  the  payments  due,  and  extends  to  the 
future  payments  only  when  the  creditor  so  states. 

Art.  1575.  If  the  creditor  remits  the  debt  as  to  any  of  the  solidary 
debtors,  he  cannot  subsequently  exercise  the  action  granted  him  by 
article  1561,  except  with  a  reduction  of  the  share  corresponding  to  the 
former  in  the  debt.* 

Art.  1576.  The  novation  between  the  creditor  and  any  one  of  the 
solidary  debtors,  discharges  the  rest,  unless  the  latter  accede  to  the 
newly  constituted  obligation. 

1625  No.  2,  1704,  1588. 

Art.  1577.  The  debtor  sued  may  oppose  to  the  suit  all  the  exceptions 
resulting  from  the  nature  of  the  obligation,  and  in  addition  all  his  per- 
sonal ones. 

But  he  cannot  oppose,  by  way  of  compensation,  the  credit  of  a  solidary 
co-debtor  against  the  plaintiff,  if  the  solidary  co-debtor  shall  not  have 
ceded  his  right  to  him. 

1682,  1716  par.  4,  2380,  2378. 

Art.  1578.  If  the  thing  perishes  through  the  fault  or  during  the  de- 
fault of  one  of  the  solidary  debtors,  all  of  them  are  solidarity  obligated 
as  to  the  price,  reserving  the  action  of  the  co-debtors  against  the  debtor 
who  is  negligent  or  in  default.  But  the  action  for  damages  arising  from 
the  fault  or  default,  can  be  brought  by  the  creditor  against  the  negli- 
gent or  defaulting  debtor  only. 

1613,  1583  No.  3,  1590,  1591. 

*  The  citation  to  article  1 561  is  incorrect;  article  1571  should  have  been  cited. 


3*9 

Art.  1579.  The  solidary  debtor  who  has  paid  the  debt  or  who  has 
extinguished  it  by  any  of  the  means  equivalent  to  payment,  is  subro- 
gated to  the  action  of  the  creditor  with  all  his  privileges  and  securities, 
but  limited  with  regard  to  each  of  the  co-debtors  to  the  part  or  share 
such  co-debtor  may  have  in  the  debt. 

If  the  business  for  which  the  solidary  obligation  has  been  contracted, 
concerns  only  one  or  more  of  the  solidary  debtors,  the  latter  shall  be 
liable  among  themselves,  according  to  their  respective  parts  or  quotas 
in  the  debt,  and  the  other  co-debtors  shall  be  considered  as  sureties. 

The  part  or  quota  of  an  insolvent  co-debtor  is  divided  among  the 
others  in  proportion  to  their  parts  or  quotas,  including  even  those  whom 
the  creditor  may  have  relieved  from  the  solidarity. 

1668  No.  3,  1727,  1583  No.  2,  1588. 

Art.  1580.  The  heirs  of  each  of  the  solidary  debtors,  are  jointly  obli- 
gated for  the  total  debt ;  but  each  heir  shall  be  liable  only  for  that  quota 
of  the  debt  corresponding  to  his  hereditary  portion. 

ii55,  1585,  1597,  956,  14x1. 


33° 


TITLE  X. 

Of  Divisible  and  Indivisible  Obligations. 

Art.  i  58  i.  An  obligation  is  divisible  or  indivisible,  according  to 
whether  it  has  or  has  not  for  its  object  a  thing  susceptible  of  division, 
whether  material,  intellectual  or  of  a  quota. 

Thus,  an  obligation  to  grant  a  right  of  way,  or  that  of  building  a 
house,  are  indivisible;  that  to  pay  a  sum  of  money,  divisible. 

Art.  1582.  The  fact  of  an  obligation  being  solidary  does  not  give  it 
the  character  of  an  indivisible  one. 

1584,  1585,  1896. 

Art.  1583.  If  the  obligation  be  neither  solidary  nor  indivisible,  each 
of  the  creditors  may  demand  his  own  quota  only,  and  each  of  the  co- 
debtors  is  obligated  only  for  the  payment  of  his  own ;  and  the  quota  of 
the  insolvent  debtor  shall  not  be  a  charge  upon  his  co-debtors.  The 
following  cases  are  excepted : 

1 .  The  mortgage  action  or  action  of  pledge  is  brought  against  that  of 
the  co-debtors  who  possesses  the  thing  mortgaged  or  pledged,  in  whole 
or  in  part.  A  co-debtor  who  has  paid  his  share  of  the  debt  cannot 
recover  the  pledge  or  obtain  the  cancellation  of  the  mortgage,  not  even 
in  part,  until  the  total  debt  is  extinguished;  and  the  creditor  whose 
share  of  the  credit  has  been  satisfied,  cannot  remit  the  pledge  or  cancel 
the  mortgage,  not  even  in  part,  until  his  co-creditors  shall  have  been 
paid  in  full. 

2.  If  the  debt  consists  of  a  specific  or  determinate  thing,  the  co-debtor 
who  possesses  it  is  obliged  to  make  delivery  thereof. 

3.  That  co-debtor  by  whose  act  or  fault  the  performance  of  the  obli- 
gation has  become  impossible,  is  exclusively  and  solidarity  liable  for 
all  damages  to  the  creditor. 

4.  When  by  a  testament  or  an  agreement  between  the  heirs,  or  by  a 
partition  of  the  inheritance,  the  obligation  of  paying  the  entire  debt  has 
been  imposed  upon  one  of  the  heirs,  the  creditor  may  either  sue  said  heir 
for  the  entire  debt,  or  each  of  the  heirs  for  his  pro  rata  share  thereof. 

If  it  shall  have  been  expressly  stipulated  with  the  deceased  that  the 
payment  could  not  be  made  in  parts,  not  even  by  the  heirs  of  the  debtor, 
each  of  the  latter  may  be  obliged  to  come  to  an  understanding  with  his 
co-heirs  for  the  payment  of  the  debt  in  full,  or  to  pay  it  himself,  reserv- 
ing his  action  of  warranty. 

But  the  heirs  of  the  creditor,  if  they  do  not  institute  their  action  con- 
jointly, can  demand  the  payment  of  the  debt  only  according  to  their 
quotas  pro  rata- 


33i 

5.  If  a  parcel  of  land  or  any  other  indeterminate  thing  is  owed,  the 
division  of  which  would  cause  grave  damage  to  the  creditor,  each  of  the 
co-debtors  may  be  obliged  to  come  to  an  agreement  with  the  others  for 
the  payment  of  the  entire  thing,  or  to  pay  it  himself,  reserving  his  action 
for  indemnity  from  the  others. 

But  the  heirs  of  the  creditor  cannot  demand  the  payment  of  the  whole 
thing,  unless  they  shall  bring  their  action  conjointly. 

6.  When  the  obligation  is  an  alternative  one,  if  the  selection  is  to  be 
made  by  the  creditors,  they  must  all  do  it  conjointly ;  and  if  by  the 
debtors,  all  of  the  latter  must  do  it  conjointly. 

1412,  952,  2433,  2430,  948,  950,  1598,  1579  par.  2,  1578,  1590, 
1591,  1613  etseq.,  1397,  1415,  1416,  1430  par.  2,  2484,  141 1  et 
seq.,  1378,  1556. 

Art.  1584.  Each  of  those  who  shall  have  jointly  contracted  an  indi- 
visible obligation,  is  obliged  to  perform  it  in  toto,  even  though  the  soli- 
darity shall  not  have  been  stipulated,  and  each  of  the  creditors  of  an 
indivisible  obligation  has  likewise  the  right  to  demand  the  total. 

1568  par.  3,  1682,  1577. 

Art.  1585.  Each  of  the  heirs  of  him  who  has  contracted  an  indivisi- 
ble obligation  is  obliged  to  satisfy  it  in  toto,  and  each  of  the  heirs  of  the 
creditor  may  demand  its  full  performance. 

1580. 

Art.  1585.  The  prescription  which  is  interrupted  as  to  one  of  the 
debtors  of  the  indivisible  obligation,  is  so  also  as  to  the  others. 

943,  2540. 

Art.  1587.  If  one  of  the  debtors  of  an  indivisible  obligation  should 
be  sued,  he  may  demand  time  to  come  to  an  understanding  with  the 
other  debtors,  in  order  to  perform  it  among  all ;  unless  the  obligation  be 
of  such  a  nature  that  he  alone  can  perform  it,  as  in  such  case  he  maybe 
adjudged  at  once  to  a  full  performance,  reserving  his  right  of  action 
against  the  other  debtors,  for  the  indemnification  due  him. 

1551  par.  2,  1630  par.  2. 

Art.  1588.  The  performance  of  an  indivisible  obligation  by  any  of 
the  obligees,  extinguishes  it  with  regard  to  all. 

1570,  1576,  1579 


332 

Art.  1589.  If  there  be  two  or  more  creditors  of  an  indivisible  obliga- 
tion, none  of  them  can,  without  the  consent  of  the  others,  remit  the  debt 
or  receive  the  price  of  the  thing  owed.  If  any  of  the  creditors  shall  remit 
the  debt  or  receive  the  price  of  the  thing,  his  co-creditors  may  still  sue 
for  the  thing  itself,  upon  paying  to  the  debtor  the  part  or  quota  of  the 
creditor  who  may  have  remitted  the  debt  or  received  the  price  of  the 
thing. 

1570  par.  2. 

.  Art.  1 590.  An  action  for  damages  resulting  from  the  non-performance 
of  or  delay  in  the  performance  of  the  indivisible  obligation,  is  divisible ; 
none  of  the  creditors  can  bring  it,  and  none  of  the  debtors  is  subject 
thereto,  except  for  the  part  falling  to  him. 

If  by  the  act  or  fault  of  one  of  the  debtors  of  the  indivisible  obligation, 
the  performance  thereof  has  been  rendered  impossible,  he  alone  shall  be 
liable  for  all  damages. 

1578,  1583  No.  3,  2355,  1613  etseq.,  1597  pars.  2  and  3,  1896  par.  2. 

Art.  1 59 1.  If  of  two  co-debtors  of  an  act  which  is  to  be  performed  in 
common,  one  is  ready  to  perform  it,  and  the  other  refuses  to  do  so  or 
delays,  the  latter  only  shall  be  liable  for  the  damages  incurred  by  the 
creditor  through  the  non-performance  or  delay. 

See  citations  to  preceding  article. 


333 

TITL.E  XI. 

Of  Obligations  with  a  Penal  Clause. 

Art.  1592.  The  penal  clause  is  that  in  which  a  person,  in  order  to 
assure  the  performance  of  an  obligation,  subjects  himself  to  a  penalty 
which  consists  in  giving  or  doing  something  in  the  event  of  not  perform- 
ing or  delaying  the  principal  obligation. 

65. 

Art.  1593.  The  nullity  of  the  principal  obligation  carries  with  it  that 
of  the  penal  clause,  but  the  nullity  of  the  latter  does  not  carry  with  it 
that  of  the  principal  obligation. 

Nevertheless,  when  a  person  promises  for  another,  imposing  upon 
himself  a  penalty  in  the  event  that  said  person  does  not  perform  what 
was  promised,  the  penalty  shall  be  valid,  even  though  the  principal 
obligation  should  have  no  effect  on  account  of  a  lack  of  consent  of  said 
person. 

The  same  shall  take  place  when  a  person  stipulates  with  another  in 
favor  of  a  third  person,  and  the  person  with  whom  the  agreement  is  made 
subjects  himself  to  a  penalty  in  the  event  that  he  does  not  perform  what 
was  promised. 

1507- 

Art.  1594.  Before  the  debtor  is  in  default,  the  creditor  cannot  at  his 
will  demand  the  principal  obligation  or  the  penalty,  but  only  the  prin- 
cipal obligation ;  nor  after  the  debtor  is  in  default,  can  the  creditor  de- 
mand at  the  same  time  the  performance  of  the  principal  obligation  and 
the  penalty,  but  only  one  of  the  two  things,  at  his  option ;  unless  it  shall 
appear  that  the  penalty  was  stipulated  for  a  simple  delay,  or  unless  it 
shall  have  been  agreed  that  by  the  payment  of  the  penalty  the  principal 
obligation  shall  not  be  understood  to  be  extinguished. 

1608,  1553,  1600,  2486,  1556,  1706,  751. 

Art.  1595.  If  a  term  shall  or  shall  not  have  been  stipulated  within 
which  the  principal  obligation  is  to  be  performed,  the  debtor  does  not 
incur  the  penalty  unless  he  is  in  default,  if  the  obligation  be  positive. 

If  the  obligation  be  negative,  the  penalty  is  incurred  the  moment  the 
act  which  the  debtor  has  obligated  himself  not  to  perform,  is  executed. 

1608. 


334 

Art.  1,596.  If  the  debtor  performs  only  a  part  of  the  principal  obli- 
gation and  the  creditor  accepts  this  part,  he  shall  be  entitled  to  a  propor- 
tionate reduction  in  the  penalty  stipulated  for  non-performance  of  the 
principal  obligation. 

Art.  1597.  When  the  obligation  contracted  with  a  penal  cause  is  as 
to  a  divisible  thing,  the  penalty,  in  the  same  manner  as  the  principal 
obligation,  is  divided  pro  rata  among  the  heirs  of  the  debtor  according 
to  their  hereditary  quotas.  The  heir  who  violates  the  obligation,  in- 
curs, therefore,  that  part  of  the  penalty  which  corresponds  to  his  heredi- 
tary quota;  and  the  creditor  shall  have  no  action  against  the  co-heirs 
who  have  not  violated  the  obligation. 

The  case  is  excepted  in  which  the  penal  clause  having  been  attached 
with  the  express  intention  of  rendering  a  partial  payment  impossible, 
one  of  the  heirs  has  prevented  the  payment  in  full ;  in  such  case  the  full 
penalty  may  be  demanded  of  such  heir,  or  their  respective  quota  of  each 
heir,  reserving  their  remedy  against  the  violating  heir. 

The  same  shall  be  observed  when  the  obligation  contracted  with  the 
penal  clause  is  as  to  an  indivisible  thing 

1580,  1591,  1583  No.  4,  par.  2,  1590. 

Art.  1598.  If  an  immovable  should  be  subject  to  a  penalty  by  mort- 
gage, the  full  penalty  may  be  enforced  against  such  immovable,  reserving 
the  remedy  for  indemnity  from  the  proper  person. 

2433,  1583  Nos.  1  and  3. 

Art.  1599.  The  penalty  may  be  enforced  in  all  cases  in  which  it  may 
have  been  specified,  without  the  debtor  being  able  to  plead  that  the  non- 
performance of  the  engagement  has  not  prejudiced  the  creditor  or  has 
benefited  him. 

1602. 

Art.  1600.  The  penalty  and  the  indemnity  for  damages  cannot  be 
demanded  at  the  same  time,  unless  this  shall  have  been  expressly  stipu- 
lated; but  the  creditor  shall  always  have  the  right  to  demand  the  in- 
demnity or  the  penalty. 

1594- 

Art.  i  60  i.  When  by  the  principal  agreement,  one  of  the  parties  obli- 
gated himself  to  pay  a  specific  sum,  as  the  equivalent  of  what  should  be 
done  by  the  other  party,  and  the  penalty  consists  likewise  in  the  pay- 
ment of  a  specific  sum,  the  reduction  of  the  second  in  all  that  it  exceeds 
double  the  first,  including  the  latter  in  the  former,  may  be  demanded. 


335 

The  preceding  provision  does  not  apply  to  a  loan  for  consumption 
(mutuum)  nor  to  obligations  whose  value  it  is  impossible  to  appraise  or 
which  is  undetermined. 

In  the  former  the  penalty  may  be  reduced  in  so  far  as  it  exceeds  the 
maximum  interest  which  it  is  permitted  to  stipulate. 

In  the  latter,  the  reduction  thereof  is  left  to  the  discretion  of  the  Judge, 
when  in  view  of  the  circumstances  it  shall  appear  enormous. 

1498,  1947,  22:31. 


TITL.E  XII. 

Of  the  Effect  of  Obligations. 

Art.  1602.  Every  contract  legally  celebrated  is  a  law  for  the  con- 
tracting parties,  and  cannot  be  invalidated  without  their  mutual  consent 
or  for  legal  causes. 

1500,  1502,  1759,  1625,  1642,  1690  No.  3  par.  2,  1778. 

Art.  1603.  Contracts  must  be  executed  in  good  faith,  and  conse- 
quently are  binding  not  only  as  to  what  is  expressed  therein,  but  also  as 
to  all  the  things  which  emanate  precisely  from  the  nature  of  the  obliga- 
tion, or  which  under  the  law  belong  thereto. 

1618,  1501,  1621  par.  2,  1765. 

Art.  1604.  The  debtor  is  liable  only  to  the  extent  of  a  gross  fault  in 
contracts  which  by  their  nature  are  beneficial  to  the  creditor  only ;  he  is 
liable  for  ordinary  fault  in  contracts  entered  into  for  the  mutual  benefit 
of  the  parties ;  and  very  slight  fault  in  contracts  in  which  the  debtor  is 
the  only  one  benefited. 

The  debtor  is  not  liable  for  fortuitous  events,  unless  he  should  be  in 
default  (the  fortuitous  event  being  such  as  shall  not  have  damaged  the 
thing  owed,  if  it  shall  have  been  delivered  to  the  creditor),  or  the  for- 
tuitous event  should  have  been  due  to  his  fault. 

The  burden  of  proof  as  to  the  diligence  or  care  is  on  the  person  who 
should  have  employed  it ;  that  of  the  fortuitous  event,  on  the  one  plead- 
ing it. 


336 

All  of  which,  nevertheless,  shall  be  understood  without  prejudice  to 
the  special  provisions  of  the  laws,  and  the  express  stipulations  of  the 
parties. 

63,  1561,  1563,  1616  par.  2,  1729  etseq.,  1932  par.  3,  1983,  2254, 
1738,  1317,  1386,  2204,  2244,  64,  1733,  1757,  2176  par.  3,  298, 
1827,  2155,  2179,  2203,  2306  par.  2,  2377,  2178,  1616  par.  3, 
1732,  1545- 

Art.  1 605.  The  obligation  to  give  entails  that  of  delivering  the  things ; 
and  if  the  latter  be  a  specific  or  certain  one,  it  entails,  furthermore,  that 
of  preserving  it  until  the  delivery,  under  the  penalty  of  paying  damages 
to  the  creditor  who  shall  not  be  in  default  in  receiving. 

751,  J739- 

Art.  1606.  The  obligation  to  preserve  the  thing  requires  that  the 
proper  care  be  employed  in  its  custody. 

Art.  1637.  The  risk  of  the  specific  thing  whose  delivery  is  owed,  is 
always  the  creditor's;  unless  the  debtor  should  be  in  default  in  the 
delivery,  or  have  engaged  to  deliver  one  and  the  same  thing  to  two  or 
more  persons  by  virtue  of  different  obligations ;  in  either  of  these  cases, 
the  risk  shall  be  the  debtor's  until  the  delivery  of  the  thing. 

1 193,  1543,  1561,  1648,  1876. 

Art.  1608.  The  debtor  incurs  default : 

1 .  When  he  has  not  performed  the  obligations  within  the  term  stipu- 
lated; unless  the  law,  in  special  cases,  require  that  a  demand  be  made 
of  the  debtor  in  order  to  constitute  him  in  default. 

2.  When  the  thing  could  not  have  been  given  or  executed  except 
within  a  certain  time  and  the  debtor  has  permitted  it  to  pass  without 
giving  or  executing  the  thing. 

3.  In  other  cases,  when  the  debtor  has  been  judicially  reconvened  by 
the  creditor. 

990,  991,  1656,  2007,  2035. 

Art.  1609.  In  bilateral  contracts  neither  of  the  contracting  parties 
incurs  default  by  failing  to  perform  what  was  agreed,  while  the  other 
does  not  perform  it  on  his  part,  or  does  not  wish  to  perform  it  in  the 
proper  manner  and  in  due  time. 

1546,  1882  par.  3. 

Art.  1 6 10.  If  the  obligation  be  to  do,  and  the  debtor  incurs  default, 
the  creditor  may  demand,  together  with  damages  for  the  default,  any  of 
the  following  three  things,  at  his  will ; 


337 

i.  That  the  debtor  be  judicially  compelled  to  perform  the  act  agreed. 

2.  That  he  himself  be  authorized  to  have  it  performed  by  a  third 
person  at  the  expense  of  the  debtor. 

3.  That  the  debtor  indemnify  him  for  the  damage  resulting  from  the 
breach  of  contract. 

1630  par.  2. 

Art.  1 6 1 1 .  The  engagement  to  celebrate  a  contract  does  not  produce 
any  obligation  whatsoever  in  any  case.* 

Art.  161 2.  Every  obligation  not  to  do  a  thing  is  resolved  in  that  of 
indemnifying  damages,  if  the  debtor  fails  to  perform,  and  what  is  done 
cannot  be  undone. 

If  the  thing  done  can  be  destroyed,  and  its  destruction  being  necessary 
for  the  object  in  view  at  the  time  of  celebrating  the  contract,  the  debtor 
shall  be  obliged  thereto,  or  the  creditor  authorized  to  carry  it  out  at  the 
expense  of  the  debtor. 

If  the  object  can  be  fully  accomplished  by  other  means,  in  such  case 
the  debtor  willing  to  use  them  shall  be  heard. 

The  creditor  shall  in  any  case  be  indemnified. 

1262  par.  1. 

Art.  1613.  The  indemnity  for  damages  comprises  the  emergent  dam- 
age and  the  ceasing  income,  whether  arising  from  the  non-performance 
of  the  obligation  or  its  imperfect  performance,  or  through  delay  in 
performance. 

Such  cases  are  excepted  in  which  the  law  expressly  limits  the  indemnity 
to  the  emergent  damage. 

Art.  1 614.  By  emergent  damage  is  understood  the  damage  or  loss 
arising  from  the  non-performance  of  the  obligation  or  from  its  imperfect 
performance,  or  delay  in  its  performance;  and  by  ceasing  income  the 
profit  of  benefit  which  ceases  to  be  received  as  a  consequence  of  the  non- 
performance of  the  obligation,  its  imperfect  performance,  or  delay  in 
its  performance. 

Art.  1 6 1 5.  Indemnity  for  damages  is  due  from  the  moment  the  debtor 
incurs  default,  or,  if  the  obligation  be  to  not  do,  from  the  moment  of  the 
violation. 

1608,  1612. 

Art.  16  i  6.  If  the  debtor  cannot  be  charged  with  fraud,  he  is  liable 
only  for  the  damages  which  were  foreseen  or  could  have  been  foreseen 
at  the  time  of  the  contract;  but  if  there  be  fraud,  he  is  liable  for  all 
damages  which  were  an  immediate  or  direct  consequence  of  the  non-per- 
formance of  the  obligation,  or  of  delay  in  its  performance. 

♦Repealed  and  substituted  by  art.  89  of  law  153  of  1887. 


338 


The  default  due  to  force  majeure  or  a  fortuitous  event,  does  not  give 
rise  to  indemnity  for  damages. 

The  stipulations  of  the  contracting  parties  may  modify  these  rules. 

1604  pars.  2  and  4. 

Art.  161 7.  If  the  obligation  be  to  pay  a  sum  of  money,  the  indem- 
nity for  damages  for  the  default  is  subject  to  the  following  rules : 

1 .  Conventional  interest  shall  continue  to  accrue,  if  a  rate  of  interest 
higher  than  the  legal  one  shall  have  been  stipulated,  or  the  legal  interest 
begins  to  run,  in  a  contrary  case ;  however,  the  special  provisions  author- 
izing the  collection  of  current  interest  in  certain  cases  remain  in  force. 

The  legal  rate  of  interest  is  fixed  at  six  per  cent,  per  annum. 

2.  It  is  not  necessary  for  the  .creditor  to  prove  damage,  when  he 
charges  interest  only ;  the  fact  of  the  delay  is  sufficient. 

3.  Back  interest  does  not  draw  interest. 

4.  The  preceding  rule  applies  to  all  kinds  of  periodical  rents,  annuities 
and  pensions. 


2  235,  2395 


339 

TITLE  XIII. 
Of  the  Interpretation  of  Contracts. 

Art.  1618.  The  intention  of  the  contracting  parties  being  clearly 
known,  it  should  be  observed  rather  than  the  literal  meaning  of  the 
words. 

1 1 27  par.  2,  14 1 8  par.  4,  1540,  1603. 

Art.  1 61 9.  However  general  the  terms  of  a  contract  may  be,  they 
shall  be  applied  only  to  the  subject-matter  of  the  contract. 

Art.  1620.  The  meaning  in  which  some  clauses  may  produce  an  effect, 
must  be  preferred  to  that  in  which  it  could  not  produce  any  effect. 

32. 

Art.  1 62 1 .  In  those  cases  in  which  a  contrary  intent  should  not  appear, 
the  construction  most  in  accord  with  the  nature  of  the  contract  shall  be 
applied. 

Clauses  of  common  usage  are  presumed  even  though  not  expressed. 

66,  1501,  1603,  32. 

Art.  1622.  The  clauses  of  a  contract  shall  be  interpreted  in  relation 
to  one  another,  giving  to  each  the  meaning  most  suitable  to  the  contract 
in  its  totality. 

They  may  also  be  interpreted  by  those  of  another  contract  between 
the  same  parties  upon  the  same  "matter. 

Or  by  the  practical  application  that  both  parties  may  have  made 
thereof,  or  one  of  the  parties  with  the  approval  of  the  other  party. 

30- 

Art.  1623.  When  a  case  has  been  expressed  in  a  contract  to  explain 
the  obligation,  it  shall  not  be  understood  that  it  was  desired  to  restrict 
the  agreement  to  such  case  only,  to  the  exclusion  of  others  to  which  it 
would  naturally  extend. 

Art.  1624.  If  none  of  the  preceding  rules  of  interpretation  can  be  ap- 
plied, ambiguous  clauses  shall  be  interpreted  in  favor  of  the  debtor. 

But  ambiguous  clauses  which  may  have  been  drawn  or  dictated  by 
one  of  the  parties,  whether  the  creditor  or  the  debtor,  shall  be  inter- 
preted against  said  party,  provided  that  the  ambiguity  arises  from  the 
absence  of  an  explanation  which  said  party  should  have  made. 

1557  par.  2,  1564,  1646  par.  2,  478,  500. 


340 


TITLE  XIV. 

Of  the   Munner  in  which  Obligations  may  be  Extinguished  and 
Primarily  of  Solution  or  Actual  Payment. 

Art.  1625.  Every  obligation  may  be  extinguished  by  an  agreement 
in  which  the  parties  interested,  if  capable  of  freely  disposing  of  their 
property,  consent  to  considering  it  null. 

Obligations  are  further  extinguished  in  whole  or  in  part : 

1.  By  solution  or  actual  payment. 

2.  By  novation. 

3.  By  transaction. 

4.  By  remission. 

5.  By  compensation. 

6.  By  confusion. 

7.  By  the  loss  of  the  thing  due. 

8.  By  a  declaration  of  nullity  or  by  rescission. 

9.  By  the  event  of  the  resolutory  condition. 

10.  By  prescription. 

Transaction  and  prescription  will  be  treated  of  at  the  end  of  this  Book : 
the  resolutory  condition  has  been  treated  of  in  the  Title  Of  Conditional 
Obligations. 

1602. 

Chapter  i. 

Of  Actual  Payment  in  General. 

Art.  1626.  Actual  payment  is  the  performance  (prestation)  of  what 
is  due. 

Art.  1627.  The  payment  shall  be  made  under  all  respects  in  accord- 
ance with  the  tenor  of  the  obligation ;  without  prejudice  to  the  provisions 
of  law  in  special  cases. 

The  creditor  cannot  be  obliged  to  receive  a  thing  other  than  that  due 
him,  not  even  under  the  pretext  of  the  thing  offered  being  of  equal  or 
greater  value. 


2407,  1648. 

Art.  1628.  In  periodical  payments,  the  receipts  for  three  determined 
and  consecutive  installments  shall  presume  the  payment  of  the  previous 
installments,  provided  that  they  should  have  been  effected  between  the 
said  creditor  and  debtor. 

66,  1653  par.  2,  2234. 


34* 

Art.  1629.  The  expenses  occasioned  by  the  payment  shall  be  for  the 
account  of  the  debtor;  without  prejudice  to  what  may  have  been  stipu- 
lated and  what  the  judge  may  order  with  regard  to  judicial  costs. 

1662,  2373. 

Chapter  2. 

By  Whom  Payment  may  be  Made. 

Art.  1630.  Any  person  may  pay  for  the  debtor  in  his  name,  even  with- 
out his  knowledge  or  against  his  will,  and  even  in  spite  of  the  creditor. 

But  if  the  obligation  is  to  do,  and  if  for  the  work  involved  the  ability 
or  talent  of  the  debtor  has  been  taken  into  consideration,  the  work  can- 
not be  done  by  another  person  against  the  will  of  the  creditor. 

1690  No.  3,  par.  2,  1587,  1610,  2304.  • 

Art.  1 63 1.  He  who  pays  without  the  consent  of  the  debtor  shall  have 
a  right  of  action  onlyagainst  the  latter  for  recovery  of  the  amount  paid ; 
and  he  shall  not  be  considered  as  subrogated  by  the  law  in  the  place  and 
rights  of  the  creditor,  nor  can  he  compel  the  creditor  to  subrogate  him. 

2309,  1668  No.  5,  1669,  1 97 1,  2313  par.  2. 

Art.  1632.  He  who  pays  against  the  will  of  the  debtor,  is  not  entitled 
to  reimbursement  by  the  debtor  of  the  amount  paid,  unless  the  creditor 
voluntarily  cedes  to  him  his  right  of  action. 

2309,  2371,  2394  No.  5,  par.  2,  2400  No.  2,  1959  et  seq.     33  of  law 
57  of  1887. 

Art.  1633.  A  payment  by  which  the  ownership  must  be  transferred, 
is  not  valid,  except  in  so  far  as  the  person  paying  is  the  owner  of  the 
thing  paid  or  pays  it  with  the  consent  of  the  owner. 

Nor  is  a  payment  valid  by  which  ownership  is  to  be  transferred,  ex- 
cept in  so  far  as  the  person  paying  has  the  power  to  alienate. 

Nevertheless,  when  the  thing  paid  is  fungible  (consumable),  and  the 
creditor  has  consumed  it  in  good  faith,  the  payment  is  validated,  even 
though  made  by  one  who  was  not  the  owner  and  did  not  have  the  power 
to  alienate. 

752,  1505,  947  par.  2,  1871,  2490. 

Chapter  3. 

To  Whom  Payment  is  to  be  Made. 

Art.  1634.  In  order  that  the  payment  may  be  valid,  it  must  be  made 
either  to  the  creditor  himself  (under  which  name  are  understood  all  those 


342 

who  may  have  succeeded  him  in  the  credit,  even  under  a  singular  title) , 
or  to  the  person  authorized  by  law  or  the  Judge  to  receive  for  him,  or  to 
the  person  deputed  by  the  creditor  to  make  the  collection. 

A  payment  made  in  good  faith  to  a  person  at  the  time  in  possession  of 
the  credit,  is  valid,  even  though  it  should  afterwards  appear  that  the 
credit  did  not  belong  to  him. 

494,  1540  par.  2,  1640,  761,  784,  762  par.  2,  1959  etseq.     33  of  law 
57  of  1887. 

Art.  1635.  A  payment  made  to  a  person  other  than  those  mentioned 
in  the  preceding  article,  is  valid,  if  the  creditor  ratifies  it  in  an  express 
or  implied  manner,  when  legitimately  able  to  do  so ;  or  if  the  person  who 
received  the  payment  succeeds  to  the  credit,  as  heir  of  the  creditor,  or 
under  afiy  other  title  whatsoever. 

When  the  payment  made  to  an  incompetent  person  is  ratified  by  the 
creditor,  it  shall  be  considered  as  valid  from  the  beginning. 

Art.  1636.  The  payment  made  to  the  creditor  is  null  in  the  following 
cases : 

1.  If  the  creditor  has  not  the  administration  of  his  property;  unless 
it  be  proved  that  the  thing  paid  has  been  employed  for  the  benefit  of  the 
creditor,  and  when  this  benefit  is  established  in  accordance  with  article 

1747- 

2.  If  the  Judge  shall  have  attached  the  debt,  or  ordered  the  payment 
withheld. 

3.  If  the  insolvent  debtor  be  paid  in  fraud  of  the  creditors  in  whose 
favor  bankruptcy  proceedings  have  been  instituted. 

784,  1540  par.  2,  2490,  152 1  Nos.  3  and  4. 

Art.  1637.  Tutors  and  curators  receive  legally  for  their  respective 
wards ;  executors  who  had  {tuvieron)  this  special  charge  or  the  seizin  of  the 
property  of  the  deceased ;  the  husbands  for  their  wives  in  so  far  as  they 
have  the  administration  of  the  property  of  the  latter ;  fathers  of  families 
for  their  children,  under  similar  circumstances ;  fiscal  collectors  or  those 
of  public  communities  or  establishments,  for  the  rise  or  the  respective 
communities  or  establishments ;  and  the  other  persons  who  by  a  special 
law  or  judicial  decree  are  authorized  therefor.* 

784,  494,  1353,  1805,  295,  639,  640,  741  par.  2,  62,  1468,  1658  No. 
2.     25,  26  of  law  57  of  1887. 

Art.  1638.  The  deputation  to  receive  the  payment  may  be  conferred 
by  a  general  power  of  attorney  for  the  free  administration  of  all  the  busi- 

*  This  should  be:  "  .  .  .  the  executors  who  may  have  {tuvieren)  this  special 
charge"  and  not  "  .  .     who  had  {tuvieron)     .     .     ."as  herein  stated. 


343 

ness  of  the  creditor,  or  by  a  special  power  for  the  free  administration  of 
the  business  matter  or  matters  involving  the  payment,  or  by  a  simple 
mandate  communicated  to  the  debtor. 

2147,  2149. 

Art.  1639.  Any  person  whom  the  creditor  commissions  therefor,  may 
be  deputed  to  make  the  collection  and  validly  receive  the  payment, 
even  though  at  the  time  of  being  so  deputed  he  does  not  have  the  free 
administration  of  his  property  nor  is  he  capable  of  having  it. 

2154- 

Art.  1640.  The  power  of  attorney  conferred  by  a  creditor  to  a  person 
to  sue  the  debtor,  does  not  in  itself  empower  him  to  receive  the  pay- 
ment of  the  debt. 

1637,  2158  par.  2. 

Art.  1 64 1.  The  power  to  receive  for  the  creditor  is  not  transmitted 
to  the  heirs  or  representatives  of  the  person  deputed  by  him  for  this  pur- 
pose, unless  the  creditor  shall  have  so  expressed. 

2189  No.  5. 

Art.  1642.  The  person  designated  by  both  contracting  parties  to 
receive,  does  not  lose  this  power  by  the  mere  will  of  the  creditor;  who, 
nevertheless,  may  be  authorized  by  the  Judge  to  revoke  this  commission, 
in  all  cases  in  which  the  debtor  has  no  interest  in  objecting  thereto. 

1602,  1625. 

Art.  1643.  If  it  shall  have  been  stipulated  that  the  payment  be  made 
to  the  creditor  himself,  or  to  a  third  person,  the  payment  made  to  either 
of  the  two  is  equally  valid.  And  the  creditor  cannot  prohibit  that  the 
payment  be  made  to  a  third  person,  unless  before  the  prohibition  he 
shall  have  sued  the  debtor,  or  prove  just  cause  therefor. 

i57o. 

Art.  1644.  The  person  deputed  to  receive  becomes  incapable  through 
insanity  or  interdiction,  through  having  passed  under  the  power  of  the 
husband,  for  having  made  an  assignment  of  property  or  through  an  exe- 
cution having  been  levied  on  all  of  it;  and,  in  general,  through  all  the 
causes  which  extinguish  a  mandate. 

2189. 


344 

Chapter  4. 

Where  Payment  is  to  be  Made. 

Art.  1645.  The  payment  must  be  made  in  the  place  designated  by  the 
agreement. 

83,  85. 

Art.  1646.  If  no  place  shall  have  been  stipulated  for  the  payment,  and 
a  certain  thing  is  in  question,  the  payment  shall  be  made  in  the  place 
where  said  thing  was  located  at  the  time  of  the  establishment  of  the 
obligation. 

But  if  any  other  thing  be  in  question,  the  payment  shall  be  made  in 
the  domicile  of  the  debtor. 

1624. 

Art.  1647.  If  the  creditor  or  the  debtor  should  have  changed  their 
domicile  between  the  celebration  of  the  contract  and  the  payment,  the 
latter  shall  always  be  made  in  the  place  where  it  would  have  been  made 
without  such  change,  unless  the  parties  should  mutually  agree  other- 
wise. 

1602. 

Chapter  5. 

How  Payment  is  to  be  Made. 

Art.  1648.  If  the  debt  be  of  a  specific  thing,  the  creditor  must  receive 
it  in  the  condition  it  may  be;  unless  it  shall  have  deteriorated  and  the 
deterioration  be  due  to  the  act  or  fault  of  the  debtor,  or  of  the  persons  for 
whom  the  latter  may  be  responsible ;  or  unless  the  deterioration  should 
have  occurred  after  the  debtor  has  incurred  default,  and  is  not  due  to  a 
fortuitous  event  to  which  the  thing  would  have  been  equally  exposed 
in  the  possession  of  the  creditor. 

In  either  of  these  two  suppositions,  the  creditor  may  demand  the  re- 
scission of  the  contract  and  indemnity  for  damages;  but  if  the  creditor 
shall  prefer  to  receive  the  thing,  or  if  the  deterioration  should  appear 
to  be  unimportant,  indemnity  for  damages  only  shall  be  granted. 

If  the  deterioration  shall  have  occurred  before  the  debtor  incurs  de- 
fault, but  not  through  his  act  or  fault,  but  through  that  of  a  person  for 
whom  he  is  not  responsible,  the  payment  of  the  thing  is  valid  in  the  state 
in  which  it  may  be ;  but  the  creditor  may  demand  that  the  right  of  action 
which  the  debtor  may  have  against  the  third  person,  the  author  of  the 
damage,  be  ceded  to  him. 

1627,  1606,  1616,  1604  pan  2,  1607. 


345 

Art.  1649.  The  debtor  cannot  oblige  the  creditor  to  receive  part  pay- 
ments of  the  debt,  excepting  in  the  case  of  agreement  to  the  contrary ; 
and  without  prejudice  to  the  provisions  of  the  Jaw  in  special  cases. 

The  full  payment  of  a  debt  comprises  the  accrued  interest  and  dam- 
ages due. 

1652,  2229,  1554. 

Art.  1650.  If  there  be  any  controversy  as  to  the  amount  of  the  debt, 
or  its  accessories,  the  Judge  may  order,  until  the  question  is  decided,  the 
payment  of  the  amount  not  disputed. 

75*- 

Art.  i  65  i.  If  the  obligation  be  to  pay  in  installments,  the  payment 
shall  be  understood  to  be  divided  into  equal  parts;  unless  the  contract 
should  determine  the  part  or  quota  to  be  paid  at  each  installment. 

Art.  1652.  When  there  are  different  debts  between  the  same  creditor 
and  debtor,  each  of  them  may  be  discharged  separately;  and  conse- 
quently, the  debtor  of  a  number  of  years  of  a  pension,  rent  or  annuity, 
may  oblige  the  creditor  to  receive  the  payment  for  one  year,  even  though 
he  do  not  pay  him  the  others  at  the  same  time. 

1649. 

Chapter  6. 

Of  the  Imputation  of  Payments. 

Art.  1653.  If  a  debt  consist  of  principal  and  interest,  the  payment 
shall  be  imputed  first  to  the  interest,  unless  the  creditor  shall  expressly 
consent  that  it  be  imputed  to  the  principal. 

If  the  creditor  gives  a  receipt  for  the  principal,  without  mentioning 
the  interest,  the  latter  shall  be  presumed  to  be  paid. 

21 18,  2465,  2427,  66,  1628,  2234. 

Art.  1654.  ^  there  be  different  debts,  the  debtor  may  impute  the 
payment  to  the  one  he  wishes ;  but  without  the  consent  of  the  creditor 
he  cannot  prefer  a  debt  which  is  not  due  to  one  that  is ;  and  if  the  debtor 
do  not  impute  the  payment  to  any  one  in  particular,  the  creditor  may 
make  the  imputation  in  his  receipt ;  and  if  the  debtor  accepts  it,  he  shall 
not  have  a  licit  right  to  object  later. 

1554,  1557  par.  2,  21 18. 

Art.  1655.  If  neither  of  the  parties  shall  have  imputed  the  payment, 
the  debt  which  was  due  at  the  time  of  the  payment  shall  be  given  the 


346 

preference  over  that  not  due ;  and  should  there  be  no  difference  in  this 
respect,  the  debt  which  the  debtor  may  select. 

1557  par.  2,  21 18. 

Chapter  7. 

Of  Payment  by  Consignment  * 

Art.  1656.  In  order  that  a  payment  may  be  valid,  it  is  not  necessary 
that  it  be  made  with  the  consent  of  the  creditor;  the  payment  is  valid 
even  against  the  will  of  the  creditor,  by  means  of  consignment. 

1663.     119  to  121  of  law  153  of  1887. 

Art.  1657.  Consignment  is  the  deposit  of  the  thing  owed,  made  by 
virtue  of  the  unwillingness  or  non-appearance  of  the  creditor  to  receive 
it,  with  the  necessary  formalities,  in  the  hands  of  a  third  person. 

Art.  1658.  The  consignment  must  be  preceded  by  a  tender,  and  in 
order  to  be  valid,  must  contain- the  following  conditions  :f 

1 .  That  it  be  made  by  a  person  capable  of  paying. 

2.  That  it  be  made  to  the  creditor,  if  the  latter  be  capable  of  receiving 
the  payment,  or  to  his  legal  representative. 

3.  That  if  the  obligation  be  a  limited  one,  or  under  a  suspensive  con- 
dition, the  term  shall  have  expired  or  the  condition  performed. 

4.  That  the  tender  of  the  payment  be  made  in  the  proper  place. 

5.  That  the  debtor  address  to  the  Judge  of  competent  jurisdiction  a 
memorial  stating  the  tender  that  he  has  made  to  the  creditor,  and 
expressing,  in  addition,  what  the  debtor  owes,  including  interest  due, 
if  there  be  any,  and  the  other  net  charges ;  and  if  the  tender  of  consign- 
ment be  of  a  thing,  an  individual  description  of  the  thing  offered. 

6.  That  a  copy  of  the  memorial  of  tender  be  transmitted  to  the  credi- 
tor or  to  his  representative. 

1504,  1637. 

Art.  1659.  The  Judge,  on  the  petition  of  a  party,  shall  authorize  the 
consignment  and  designate  the  person  to  whom  it  shall  be  made. 

Art.  1660.  The  consignment  shall  be  made  with  a  citation  of  the 
creditor  or  his  legal  representative,  and  an  act  or  record  thereof  shall  be 
made  before  the  same  Judge  who  shall  have  authorized  the  consignment. 

If  the  creditor  or  his  representative  should  not  have  attended  this  act, 
they  shall  be  notified  of  the  deposit  with  an  intimation  to  receive  the 
thing  consigned. 

1658  No.  6. 

*  See  La.  Civil  Code,  arts.  2167  [2163]  to  2169  [2I°5]- 

t  Which  must  be  valid,  the  consignment  or  the  tender?  The  Code  of  Chile  says: 
"The  consignment  must  be  preceded  by  the  tender,  and  in  order  that  the  tender  may 
be  valid     .     .     ."     (Angarita). 


347 

Art.  i  66  i.  If  the  creditor  should  be  absent  from  the  place  where  the 
payment  is  to  be  made,  and  should  not  have  a  legal  representative  there, 
the  provisions  of  Nos.  i,  3,  4  and  5,  of  article  1658,  shall  apply. 

The  tender  shall  be  made  before  the  Judge ;  who,  after  ascertaining 
the  absence  of  the  creditor  and  of  a  person  to  represent  him,  shall 
authorize  the  consignment,  and  shall  designate  the  person  to  whom  it  is 
to  be  made. 

In  such  case,  a  record  of  the  consignment  shall  also  be  made  and  the 
deposit  shall  be  communicated  to  the  counsel  who  must  be  appointed 
for  the  absentee. 

Art.  1662.  The  expenses  of  every  valid  tender  and  consignment  shall 
be  borne  by  the  creditor. 

Art.  1663.  The  effect  of  a  valid  consignment  is  to  extinguish  the 
obligation,  consequently  cause  the  interest  to  cease  and  exempt  the 
debtor  from  the  danger  to  the  thing;  all  of  this  from  the  date  of  the 
consignment. 

Art.  1664.  Until  the  consignment  shall  have  been  accepted  by  the 
creditor,  or  the  payment  declared  sufficient  by  a  judgment  having  the 
force  of  res  judicata,  the  debtor  may  withdraw  the  consignment;  and 
after  being  withdrawn,  it  shall  be  considered  as  of  no  value  or  effect  with 
regard  to  the  consignor  and  his  co-debtors  and  sureties. 

1494. 

Art.  1665.  When  the  obligation  shall  have  been  irrevocably  extin- 
guished, the  consignment  may  still  be  withdrawn,  if  the  creditor  consent 
thereto.  But  in  such  case  the  obligation  shall  be  considered  as  an 
entirely  new  one ;  the  co-debtors  and  sureties  shall  be  exonerated  there- 
from, and  the  creditor  shall  not  retain  the  privileges  or  mortgages  of  his 
original  credit.  If  by  the  will  of  the  parties  the  previous  mortgages 
should  be  renewed,  they  shall  be  again  recorded,  and  their  date  shall  be 
that  of  the  new  record. 

1602,  1687,  1690  No.  1,  1696,  1703. 

Chapter  8. 
Of  Payment  with  Subrogation* 

Art.  1666.  Subrogation  is  the  transmission  of  the  rights  of  the  credi- 
tor to  a  third  person,  who  pays  him. 

Art.  1667.  A  third  person  is  subrogated  in  the  rights  of  the  creditor 
either  by  virtue  of  the  law  or  by  virtue  of  an  agreement  on  the  part  of 
the  creditor. 

1632,  1959  et  seq.     33  of  law  57  of  1887. 

*  See  La.  Civil  Code,  arts.  2159  [2155]  to  2162  [2158]. 


348 

Art.  1668.  The  subrogation  takes  place  by  operation  of  the  law,  and 
even  against  the  will  of  the  creditor,  in  all  cases  provided  for  by  law  and 
especially  for  the  benefit : 

1.  Of  a  creditor  who  pays  another  creditor  having  a  preferred  right 
by  reason  of  his  privilege  or  mortgage. 

2.  Of  the  purchaser  of  immovable  property,  who  is  obliged  to  pay  the 
creditors  to  whom  this  property  is  mortgaged. 

3.  Of  him  who  pays  a  debt  to  the  payment  of  which  he  is  bound  in  a 
solidary  or  subsidiary  manner. 

4.  Of  the  beneficiary  heir  who  pays  from  his  own  funds  the  debts  of 
the  inheritance. 

5.  Of  him  who  pays  the  debt  of  another,  the  debtor  expressly  or  im- 
pliedly consenting  thereto. 

6.  Of  him  who  has  loaned  money  to  the  debtor  for  the  payment,  as 
shown  in  the  public  instrument  covering  the  loan,  and  it  appearing  in 
the  public  instrument  of  the  payment,  that  the  debt  was  discharged 
with  the  same  money. 

1695,  957  par.  3,  1295,  1423,  1451  par.  2,  1698,  1736,  2026  par.  2, 
2060  No.  5,  2120  par.  1,  2132  par.  2,  2212,  2348,  2255,  2313  par. 
2,  2395,  2397,  2403,  2489,  2453  par.  2,  1579,  1671,  1789. 

Art.  1669.  The  subrogation  is  effected  by  virtue  of  an  agreement  on 
the  part  of  the  creditor,  when  the  latter,  receiving  the  payment  of  the 
debt  from  a  third  person,  voluntarily  subrogates  him  in  all  the  rights 
and  actions  corresponding  to  him  as  such  creditor;  the  subrogation  in 
such  case  is  subject  to  the  rule  governing  the  cession  of  rights,  and  must 
be  made  in  the  receipt. 

1695,  1632,  1959  et  seq.     33  of  law  57  of  1887. 

Art.  1670.  The  subrogation,  legal  as  well  as  conventional,  transfers 
to  the  new  creditor  all  the  rights,  actions  and  privileges,  pledges  and 
mortgages  of  the  former  creditor,  against  the  principal  debtor  as  well  as 
against  any  third  persons,  solidarity  and  subsidiarily  bound  for  the  debt. 

If  the  creditor  shall  have  been  paid  in  part  only,  he  may  exercise  his 
rights  with  regard  to  the  balance  due  him,  in  preference  to  him  who 
has  paid  only  a  part  of  the  credit. 

1691  par.  2,  1964,  2493. 

Art.  1 67 1.  If  several  persons  shall  have  lent  the  debtor  money  for 
the  payment  of  a  debt,  there  shall  be  no  preference  among  them,  what- 
ever may  have  been  the  dates  of  the  different  loans  and  subrogations.* 


*  The  Code  of  Chile  says     ".     .     .     loans  or  subrogations." 


349 


Chapter  9. 

Of  Payment  by  the  Cession  of  Property  or  by  an  Executory  Action  of  the 

Creditor  or  Creditors. 

Art.  1672.  The  cession  of  property  *  is  the  voluntary  relinquishment 
which  the  debtor  makes  of  all  his  property  to  his  creditor  or  creditors, 
when  as  a  consequence  of  inevitable  accidents,  he  finds  himself  unable 
to  pay  his  debts. 

2492. 

Art.  1673.  This  surrender  of  property  shall  be  admitted  by  the  Judge 
after  an  investigation  as  to  the  cause,  and  the  debtor  may  petition  there- 
for, notwithstanding  any  stipulation  to  the  contrary. 

15,  1526. 

Art.  1674.  In  order  to  obtain  the  cession,  the  debtor  must  establish 
his  lack  of  responsibility  for  the  bad  state  of  his  affairs,  provided  any  of 
the  creditors  should  require  it. 

Art.  1675.  The  creditors  shall  be  obliged  to  accept  the  cession, 
excepting  in  the  following  cases : 

1.  If  the  creditor  has  knowingly  alienated,  pledged  or  mortgaged  as 
his  own  the  property  of  others. 

2.  If  he  has  been  convicted  of  theft  or  robbery,  falsification  or  fraudu- 
lent bankruptcy. 

3.  If  he  has  obtained  compositions  or  respites  from  his  creditors. 

4.  If  he  has  wasted  his  property. 

5.  If  he  has  not  made  a  detailed  and  truthful  account  of  the  state  of 
his  affairs,  or  has  availed  himself  of  any  other  fraudulent  means  to 
prejudice  his  creditors. 

Art.  1676.  When  the  debtor  shall  have  risked  in  gambling  a  larger 
sum  than  a  prudent  father  of  a  family  would  risk  in  entertainment  in  such 
gambling,  it  is  a  case  in  which  waste  is  presumed. 

534- 

Art.  1677.  The  cession  shall  comprise  all  the  property,  rights  and 
actions  of  the  debtor,  excepting  those  not  subject  to  attachment. 
The  following  are  not  subject  to  attachment : 

1.  Two-thirds  of  the  salary,  income  or  pension,  which  the  debtor  may 
enjoy  by  virtue  of  his  employment,  trade,  profession  or  from  any  other 
source. 

2.  The  bed,  bedstead  and  bedding  (lecho)  of  the  debtor,  those  of  his 


*  See  La.  Civil  Code,  arts.  2170  [2166]  to  2184  [2180]. 


35o 

wife,  those  of  the  children  living  with  him  and  at  his  expense,  and  the 
clothing  necessary  for  the  protection  of  all  these  persons. 

3.  The  books  relating  to  the  profession  of  the  debtor,  to  the  value  of 
two  hundred  pesos,  to  be  selected  by  the  said  debtor. 

4.  The  machinery  and  instruments  which  the  debtor  uses  for  instruc- 
tion in  a  certain  science  or  art,  to  said  value  and  subject  to  the  same 
selection. 

5.  The  uniforms  and  equipment  of  military  persons,  according  to 
their  arm  and  rank. 

6.  The  implements  of  the  debtor  who  is  an  artisan  or  field  laborer, 
necessary  for  his  individual  labor. 

7.  Articles  for  support  and  fuel  in  the  possession  of  the  debtor,  to  the 
amount  necessary  for  the  consumption  of  the  family  for  a  month. 

8.  The  ownership  of  the  objects  which  the  debtor  holds  in  trust. 

9.  Rights,  the  exercise  of  which  is  purely  personal,  such  as  use  and 
habitation. 

1683,  1942,  2488,  1720  par.  2,  1721  par.  2,  794,  862,  1974,  2489 
par.  3,  870,  878,  1500,  1767. 

Art.  1678.  The  cession  of  the  property  produces  the  following  effects : 

1.  The  debts  are  extinguished  to  the  amount  discharged  by  said  sur- 
rendered property. 

2.  If  the  property  surrendered  should  not  have  been  sufficient  for  the 
full  discharge  of  the  debts,  and  the  debtor  later  acquires  further  prop- 
erty, he  is  obliged  to  complete  the  payment  with  the  latter. 

The  surrender  does  not  transfer  the  ownership  of  the  property  of  the 
debtor  to  the  creditors,  but  simply  the  power  to  dispose  thereof  or  of 
their  fruits  to  the  extent  of  paying  their  credits. 

2490,  2491,  1684,  1685  No.  6. 

Art.  1679.  The  debtor  may  withdraw  the  surrender  before  the  sale 
of  the  property  or  of  any  portion  thereof,  and  recover  that  existing, 
upon  payment  to  his  creditors. 

Art.  1680.  The  cession  of  the  property  having  been  made,  the  credi- 
tors may  leave  the  administration  thereof  to  the  debtor,  and  make  such 
arrangements  with  him  as  they  may  deem  advisable,  provided  that  a 
majority  of  the  creditors  present  consent  thereto. 

Art.  1 68 1.  The  consent  of  the  majority  obtained  in  the  form  pre- 
scribed by  the  laws  of  procedure,  shall  be  binding  upon  all  the  creditors 
who  may  have  been  cited  in  due  form. 

But  the  privileged,  pledge  or  mortgage  creditors,  shall  not  be  preju- 
diced by  the  decision  of  the  majority  if  they  should  have  abstained 
from  voting. 


35i 

Art.  1682.  The  cession  of  the  property  does  not  benefit  the  solidary 
or  subsidiary  co-debtors,  nor  one  who  accepted  the  inheritance  of  the 
debtor  without  the  benefit  of  inventory. 

2380,  1571,  1577,  1583,  1584,  1302,  1304. 

Art.  1683.  What  is  provided  regarding  the  cession  in  articles  1677  et 
seq.,  applies  to  the  attachment  of  the  property  by  the  executory  action 
of  the  creditor  or  creditors. 

Chapter  10. 

Of  Payment  with  the  Benefit  of  Competency. 

Art.  1684.  The  benefit  of  competency  is  that  which  is  granted  certain 
debtors  not  to  be  bound  to  pay  more  than  they  conveniently  can,  leav- 
ing them,  consequently,  what  is  indispensable  for  a  modest  subsistence, 
according  to  their  class  and  circumstances,  and  with  a  charge  of  restitu- 
tion, when  their  fortune  shall  improve. 

1678  No.  2. 

Art.  1685.  The  creditor  is  obliged  to  grant  this  benefit: 

1.  To  his  descendants  or  ascendants. 

2.  To  his  spouse,  if  not  divorced  through  his  fault. 

3.  To  his  brothers  and  sisters,  provided  that  they  have  not  been 
guilty  of  an  offense  against  the  creditor  as  grave  as  those  designated 
as  a  cause  for  disinherison  with  regard  to  descendants  or  ascendants. 

4.  To  their  co-partners  in  the  same  case ;  but  only  in  reciprocal  actions 
arising  from  the  articles  of  co-partnership. 

5.  To  the  donor;  but  only  when  it  is  a  question  of  making  him  per- 
form the  donation  promised. 

6.  To  a  bona  fide  debtor,  who  surrendered  his  property  and  who  is 
being  proceeded  against  as  to  the  property  subsequently  acquired  for 
the  full  payment  of  the  debts  previous  to  the  cession;  but  only  the 
creditors  in  whose  favor  the  cession  was  made  owe  him  this  benefit. 

166,  1266,  1474,  1480,  1678  No.  2,  2380. 

Art.  1686.  Support  and  the  benefit  cannot  be  demanded  at  the  same 
time.     The  debtor  shall  select. 


352 


TITLE  XV. 

Of  Novation.* 

Art.  1687.  Novation  is  the  substitution  of  a  new  obligation  for  a  pre- 
vious one,  which  is  thereby  extinguished. 

1699  et  seq. 

Art.  1688.  An  attorney  in  fact  or  mandatary  cannot  make  a  nova- 
tion if  he  be  not  specially  empowered  therefor,  or  shall  not  have  the 
free  administration  of  the  affairs  of  the  principal  or  donor  or  of  the 
matter  involving  the  debt. 

1505,  2157,  2158,  2159,  2160. 

Art.  1689.  In  order  that  the  novation  may  be  valid,  it  is  necessary 
that  both  the  original  obligation  and  the  contract  of  novation,  be  valid, 
at  least  naturally. 

1504,  1527. 

Art.  1 690.  The  novation  may  be  made  in  three  manners : 

1.  By  substituting  a  new  obligation  for  another,  without  a  new 
creditor  or  debtor  intervening. 

2.  By  the  debtor  contracting  a  new  obligation  with  regard  to  a  third 
person,  the  first  creditor  consequently  declaring  him  discharged  from 
the  original  obligation. 

3.  By  the  substitution  of  a  new  debtor  for  the  old  debtor,  who  con- 
sequently is  discharged. 

This  third  kind  of  novation  may  be  made  without  the  consent  of  the 
first  debtor.  When  made  with  his  consent,  the  second  debtor  is  said 
to  be  delegated  by  the  first. 

2407,  1665,  1694,  1696,  1630. 

Art.  i  69  i.  If  the  debtor  does  nothing  but  depute  a  person  who  is  to 
pay  for  him,  or  the  creditor  a  person  who  is  to  receive  for  him,  there  is 
no  novation. 

Nor  does  a  novation  exist  when  a  third  person  is  subrogated  in  the 
rights  of  the  creditor. 

1666. 

Art.  1692.  If  the  old  obligation  is  a  pure  one,  and  the  new  one  is 
subject  to  a  suspensive  condition,  or  if,  on  the  contrary,  the  old  one  is 

*  See  La.  Civil  Code,  arts.  2185  [2 181]  to  2198  [2194]. 


353 

subject  to  a  suspensive  condition  and  the  new  obligation  is  pure,  there 
is  no  novation,  while  the  condition  is  pending;  and  if  the  condition 
lapses  or  before  its  accomplishment  the  old  obligation  is  extinguished, 
there  will  be  no  novation. 

Nevertheless,  if  the  parties,  in  making  the  second  contract,  shall  agree 
that  the  first  contract  be  thereby  abolished  without  awaiting  the  ac- 
complishment of  the  pending  condition,  the  will  of  the  parties  shall  be 
respected. 

Art.  1693.  In  order  that  there  may  be  novation,  it  is  necessary  that 
the  parties  declare  it,  or  that  it  shall  indubitably  appear  that  theirinten- 
tion  has  been  to  make  a  novation,  because  the  new  obligation  carries 
with  it  the  extinguishment  of  the  old  one. 

If  the  intention  to  make  a  novation  should  not  be  evident,  the  two 
obligations  shall  be  considered  as  co-existent,  and  the  original  obligation 
shall  be  valid  in  so  far  as  the  second  one  is  not  in  contravention  thereof, 
the  privileges  and  sureties  of  the  first  one  subsisting  as  to  this  part. 

1602,  1 618  et  seq. 

Art.  1694.  The  substitution  of  a  new  debtor  for  another  does  not  pro- 
duce a  novation,  if  the  creditor  does  not  express  his  intention  of  dis- 
charging the  original  debtor.  In  the  absence  of  such  statement,  it  shall 
be  understood  that  the  third  person  is  simply  deputed  by  the  debtor  to 
make  the  payment,  or  that  the  said  third  person  binds  himself  with  him 
in  solido  or  subsidiarily,  as  may  be  deduced  from  the  tenor  or  spirit  of  the 
act. 

1690  No.  3,   1573  par.  3. 

Art.  1695.  If  the  person  delegated  is  substituted  against  his  will  for 
the  person  making  the  delegation,  there  is  no  novation,  but  only  a  cession 
of  actions  by  the  person  making  the  delegation  to  his  creditor;  and  the 
effects  of  this  act  are  subject  to  the  rules  governing  the  cession  of  actions. 

1668,  1669,  1959  et  seq.     33  of  law  57  of  1887. 

Art.  1696.  The  creditor  who  has  discharged  the  original  creditor,* 
has  later  no  right  of  action  against  him,  even  though  the  new  debtor 
should  become  insolvent;  unless  in  the  contract  of  novation  such  case 
should  have  been  expressly  reserved,  or  that  the  insolvency  should  have 
been  prior  and  public,  or  known  to  the  original  debtor. 

1665. 

Art.  1697.  He  who  having  been  delegated  by  a  person  whose  debtor 


*  The  Code  of  Chile  says  as  it  should  say:  "The  creditor  who  has  discharged  the 
original  debtor.     .     .     ." 


354 

he  believed  himself  to  be  and  was  not,  promises  the  creditor  of  the  latter 
to  pay  him  in  order  to  free  himself  of  the  false  debt,  is  obliged  to  keep 
his  promise;  but  he  shall  retain  his  right  of  action  against  the  person 
making  the  delegation  to  secure  payment  by  him  or  reimbursement  of 
the  amount  paid. 

Art.  1698.  He  who  was  delegated  by  a  person  who  believed  himself 
a  debtor  and  was  not,  is  not  obligated  to  the  creditor,  and  if  he  pay  in 
the  belief  of  the  debt  being  a  true  one,  his  status  as  to  the  person  making 
the  delegation  is  the  same  as  if  the  debt  shall  have  been  true,  and  the 
person  making  the  delegation  reserves  his  right  to  restitution  of  the 
amount  improperly  paid. 

1502,  1508,  1510,  2313  par.  2. 

Art.  1699.  In  whatsoever  manner  the  novation  be  made,  the  interest 
of  the  first  debt  is  thereby  extinguished,  unless  otherwise  stipulated. 

Art.  1 700.  Whether  the  novation  operate  by  the  substitution  of  a  new 
debtor  or  without  it,  the  privileges  of  the  first  debt  are  extinguished  by 
the  novation. 

Art.  1 70  i.  Even  though  the  novation  operate  without  the  substitu- 
tion of  a  new  debtor,  the  pledges  and  mortgages  of  the  original  obligation 
do  not  pass  to  the  subsequent  obligation,  unless  the  creditor  and  the 
debtor  shall  expressly  agree  as  to  the  reservation. 

But  the  reservation  of  the  pledges  and  mortgages  of  the  original  obli- 
gation is  not  valid,  when  the  things  pledged  and  mortgaged  belong  to 
third  persons  who  do  not  expressly  agree  to  the  second  obligation.* 

Nor  is  the  reservation  valid  in  so  far  as  the  second  obligation  exceeds 
the  first.  If,  for  example,  the  first  debt  did  not  produce  interest,  and 
the  second  does,  the  mortgage  of  the  first  shall  not  be  extended  to  the 
interest. 

Art.  1702.  If  the  novation  operate  by  the  substitution  of  a  new 
debtor,  the  reservation  cannot  have  any  effect  on  the  property  of  the 
new  debtor,  not  even  with  his  consent. 

And  if  the  novation  operate  between  the  creditor  and  one  of  his 
debtors  in  solido,  the  reservation  can  be  effective  only  with  regard  to 
the  latter.  The  pledges  and  mortgages  constituted  by  his  co-debtors 
in  solidum  are  extinguished  notwithstanding  any  provision  to  the  con- 
trary,; unless  the  latter  expressly  consent  to  the  second  obligation. 

Art.  1703.  In  the  cases  and  amounts  as  to  which  the  reservation  can- 
not have  any  effect,  the  pledges  and  mortgages  may  be  renewed;  but 
with  the  same  formalities  as  if  they  were  constituted  for  the  first  time, 
and  their  date  shall  be  that  of  the  renewal. 

1665. 
*  The  Code  of  Chile  says:  " .     .     .     when  the  things  pledged  or  mortgaged." 


355 

Art.  1704.  The  novation  discharges  the  solidary  or  subsidiary  co- 
debtors  who  have  not  consented  thereto. 

1576,  1625  No.  2,  2484  par.  2. 

Art.  1705.  When  the  second  obligation  consists  simply  in  adding  or 
deducting  a  specific  or  generic  thing  or  amount  from  the  first  one,  the 
subsidiary  and  solidary  co-debtors  may  be  obligated  to  the  extent  of 
what  they  agree  to  in  both  obligations. 

Art.  1 706.  If  the  new  obligation  be  limited  to  imposing  a  penalty  in 
the  event  of  the  first  one  not  being  performed,  and  the  first  obligation 
and  the  penalty  are  both  demandable,  the  privileges,  sureties,  pledges 
and  mortgages  shall  subsist  to  the  extent  of  the  principal  debt  without 
the  penalty. 

But,  if  in  a  case  of  violation,  the  penalty  only  is  demandable,  novation 
shall  be  understood  from  the  moment  the  creditor  demands  the  penalty 
only,  and  by  said  act,  the  privileges,  pledges  and  mortgages  of  the  origi- 
nal obligation  shall  be  extinguished,  and  those  who  consented  to  the 
original  obligation  and  not  to  the  penal  stipulation  in  solidum  or  sub- 
sidiarily, shall  be  discharged. 

1594- 

Art.  1707.  The  simple  change  of  the  place  for  payment  shall  leave 
the  privileges,  pledges  and  mortgages  of  the  obligation  and  the  liability 
of  the  solidary  and  subsidiary  co-debtors  subsistent,  but  without  any 
new  charge. 

Art.  1708.  The  mere  extension  of  the  term  of  a  debt  does  not  con- 
stitute a  novation;  but  it  puts  an  end  to  the  liability  of  the"sureties  and 
extinguishes  the  pledges  and  mortgages  constituted  on  other  property 
than  the  debtor's ;  unless  the  sureties  or  the  owners  of  the  things  pledged 
or  mortgaged  expressly  consent  to  the  extension. 

2381. 

Art.  1709.  Nor  does  the  mere  reduction  of  the  term  constitute  a 
novation ;  but  the  solidary  or  subsidiary  co-debtors  cannot  be  sued, 
until  the  expiration  of  the  term  originally  stipulated. 

1554,  2398. 

Art.  1 7 10.  If  the  creditor  has  assented  to  the  new  obligation,  under 
the  condition  that  the  solidary  or  subsidiary  co-debtors  should  consent 
thereto,  and  if  the  solidary  or  subsidiary  co-debtors  should  not  consent, 
the  novation  shall  be  considered  as  not  having  been  made. 

1576. 


356 


TITLE  XVI. 

Of  Remission. 

Art.  1.71-1.  The  remission  or  condonation  of  a  debt  has  no  value, 
unless  the  creditor  is  able  to  dispose  of  the  thing  the  object  thereof. 

1502,  1504. 

Art.  1 71 2.  A  remission  due  to  a  mere  liberality,  is  in  all  things  sub- 
ject to  the  rules  governing  donations  inter  vivos,  and  requires  insin- 
uation in  cases  in  which  a  donation  inter  vivos  needs  it. 


492,  1458,  1452  par.  3,  1443  et  seq. 

Art.  i  71 3.  There  is  an  implied  remission  when  the  creditor  volun- 
tarily delivers  to  the  debtor  the  title  of  the  obligation,  or  destroys  or 
cancels  it  with  the  intention  of  extinguishing  the  debt.  The  creditor 
may  prove  that  the  delivery,  destruction  or  cancellation  of  the  title  was 
not  voluntary  or  was  not  effected  with  the  intention  of  remitting  the 
debt.  But  in  the  absence  of  such  proof,  it  shall  be  considered  that  there 
was  an  intention  to  remit  it. 

The  surrender  of  the  pledge  or  mortgage  is  not  sufficient  to  presume 
the  remission  of  the  debt. 

1450,  1 1 86,  66. 


357 


TITLE  XVII. 

Of  Compensation.* 

Art.  i  7 14.  When  two  persons  are  indebted  to  each  other,  there  takes 
place  between  them  a  compensation  (or  set  off)  which  extinguishes  both 
debts,  in  the  manner  and  in  the  cases  hereinafter  expressed. 

Art.  1 7 15.  The  compensation  takes  place  by  the  mere  operation  of  the 
law  and  even  unknown  to  the  debtors;  and  both  debts  are  reciprocally 
extinguished  to  the  extent  of  their  values,  from  the  moment  that  the 
following  conditions  are  attendant  as  to  both : 

1.  That  they  both  are  of  money  or  fungible  or  indeterminate  things 
of  the  same  kind  and  quality. 

2.  That  both  debts  are  liquidated ;  and 

3.  That  they  are  both  actually  demandable. 

Respites  granted  the  debtor  prevent  the  compensation ;  but  this  pro- 
vision does  not  apply  to  the  days  of  grace  granted  by  a  creditor  to  his 
debtor. 

1719,  1723. 

Art.  i  716.  In  order  that  the  compensation  may  take  place,  it  is  nec- 
cessary  that  both  parties  be  mutually  indebted  to  each  other 

Thus,  the  principal  debtor  cannot  oppose  to  his  creditor,  by  way  of 
compensation,  what  the  creditor  owes  the  surety. 

Nor  if  the  debtor  of  a  ward  be  sued  by  the  tutor  or  curator,  can  he 
oppose  to  him  by  way  of  compensation  what  the  tutor  or  curator  may 
owe  him. 

Nor  if  one  of  several  debtors  in  solido  be  sued,  can  he  compensate  his 
debt  with  the  credits  of  his  co-debtors  against  the  same  creditor; 
unless  the  latter  shall  have  ceded  them  to  him. 

1577  par.  2. 

Art.  i  7  i  7.  The  mandatary  may  oppose  to  the  creditor  of  the  principal 
not  only  the  credits  of  the  latter,  but  also  his  own  credits  against  the 
same  creditor,  upon  giving  surety  that  the  principal  will  approve  the 
compensation.  But  what  the  mandatary  owes  a  third  person  cannot  be 
compensated  with  what  the  latter  owes  the  principal,  except  with  the 
consent  of  the  said  principal. 

2158. 

*  See  La.  Civil  Code,  arts.  2207  [2203]  to  2216  [2213]. 


358 

Art.  i 718.  The  debtor  who  accepts  without  any  reservation. the  ces- 
sion which  the  creditor  may  have  made  of  his  rights  to  a  third  person, 
cannot  oppose  in  compensation  to  the  assignee  the  credits  which  before 
the  acceptance  he  could  have  opposed  to  the  assignor. 

If  the  cession  shall  not  have  been  accepted,  the  debtor  may  oppose  to 
the  assignee  all  the  credits  which,  before  he  was  notified  of  the  cession,, 
he  may  have  acquired  against  the  assignor,  even  though  they  should 
not  have  become  demandable  until  after  the  notice. 

i960,  1962,  1963. 

Art.  1 7 19.  Notwithstanding  the  compensation  having  taken  place 
by  operation  of  law,  the  debtor  who  does  not  plead  it,  ignoring  a  credit 
which  he  can  oppose  to  the  debt,  shall  preserve  together  with  the  credit 
itself  the  sureties,  privileges,  pledges  and  mortgages  constituted  for  the 
security  thereof. 

Art.  1720.  The  compensation  cannot  take  place  to  the  prejudice  of 
the  rights. of  a  third  person. 

Thus,  a  credit  having  been  attached,  the  debtor  cannot  compensate 
it  to  the  prejudice  of  the  attachment  creditor  with  any  credit  of  his  own 
acquired  after  the  attachment. 

1 52 1  Nos.  3  and  4. 

Art.  1 72 1.  Compensation  cannot  be  opposed  to  a  suit  for  the  resti- 
tution of  a  thing  of.  which  its  owner  has  been  unjustly  deprived,  nor 
to  a  suit  for  the  restitution  of  a  deposit,  or  of  a  loan  for  use  (com- 
modatum),  even  though  when  the  thing  having  been  lost,  the  obligation 
to  pay  it  in  money  only  subsists. 

Nor  can  compensation  be  opposed  to  a  suit  for  indemnity,  for  an 
act  of  violence  or  fraud,  nor  to  a  suit  for  allowance  for  support  not  sub- 
ject to  attachment. 

2236,  2251,  2257,  2258,  2200,  2207,  424,  425,  426,  1677  No.  1. 

Art.  1722.  When  there  are  a  number  of  compensable  debts,  the  same 
rules  must  be  observed  in  the  compensation  as  in  the  imputation  of  pay- 
ment. 

1653,  1654,  1655. 

Art.  1 723.  When  both  debts  are  not  payable  at  the  same  place,  neither 
of  the  parties  can  oppose  the  compensation,  unless  both  debts  be  of 
money  and  that  he  who  opposes  the  compensation  takes  into  consider- 
ation the  cost  of  the  remittance. 


359 

TITLE  XVIII. 

Of  Confusion.* 

ArT.  i  724.  When  the  qualities  of  creditor  and  debtor  are  united  in  the 
same  person,  there  arises  a  confusion  of  right,  which  extinguishes  the 
debt  and  produces  the  same  effects  as  payment. 

Art.  1725.  The  confusion  which  extinguishes  the  principal  obligation, 
extinguishes  the  security;  but  the  confusion  which  extinguishes  the 
security,  does  not  extinguish  the  principal  obligation. 

Art.  1 726.  If  the  union  of  the  two  qualities  takes  place  with  regard  to 
part  of  the  debt  only,  confusion  does  not  take  place,  nor  is  the  debt  ex- 
tinguished except  as  to  that  part. 

Art.  1727.  If  there  be  confusion  between  one  of  several  debtors  in 
solido  and  the  creditor,  the  former  may  sue  each  of  his  co-debtors  for  the 
part  or  share  respectively  corresponding  to  them  in  the  debt.  If,  on 
the  contrary,  there  be  confusion  between  one  of  several  creditors  in 
solido  and  the  debtor,  the  former  shall  be  obligated  to  each  of  his  co- 
creditors  for  the  part  or  quota  respectively  corresponding  to  them  in 
the  credit. 

•     1579- 

Art.  1728.  The  credits  and  debts  of  the  heir  who  accepted  under  the 
benefit  of  inventory,  are  not  confounded  with  the  hereditary  debts  and 
credits. 

1304,  1316. 


*See  L,a.  Civil  Code,  arts.  2217  [2214]  and  2218  [2215]. 


360 


TITLE  XIX. 

Of  the  Loss  oi  tlie  Thing  Due. 

Art.  1729.  When  the  certain  and  determinate  substance  due  perishes, 
by  destruction,  or  by  becoming  unsalable,  or  because  it  disappears  and 
it  is  not  known  whether  it  exists,  the  obligation  is  extinguished ;  re- 
serving, however,  the  exceptions  contained  in  the  following  articles : 

1193,  1561,  1604  par.  2,  1827,  1877,  2179. 

Art.  1730.  If  the  thing  perishes  while  in  the  possession  of  the  debtor, 
it  shall  be  presumed  to  have  been  through  his  act  or  fault. 

66,  63,  1604  par.  3. 

Art.  1 73 1.  If  the  determinate  thing  perish  through  the  fault  or  while 
the  debtor  is  in  default,  the  obligation  of  the  latter  subsists,  but  the  ob- 
ject changes;  the  debtor  is  obligated  for  the  price  of  the  thing  and  to 
indemnify  the  creditor. 

Nevertheless,  if  the  debtor  be  in  default,  and  the  determinate  sub- 
stance due  perish  through  a  fortuitous  accident,  which  said  substance 
would  equally  have  suffered  in  the  possession  of  the  creditor,  damages 
for  the  default  only  shall  be  due.  But  if  the  fortuitous  accident  could 
not  have  taken  place  also  in  the  possession  of  the  creditor,  the  price  of 
the  thing  and  damages  for  the  default,  are  due. 

1608,  1604  par.  2,  1735. 

Art.  1732.  If  the  debtor  shall  have  constituted  himself  liable  for  any 
fortuitous  accident,  or  of  any  one  in  particular,  what  may  have  been 
agreed  shall  be  observed. 

1602,  1604  par.  4,  2178. 

Art.  1733.  The  debtor  is  bound  to  prove  the  fortuitous  accident  which 
he  pleads. 

If,  being  in  default,  he  shall  claim  that  the  determinate  substance 
would  equally  have  been  destroyed  in  the  possession  of  the  creditor,  he 
shall  also  be  obliged  to  prove  it. 

1604  par.  3,  1757. 

Art.  1 734.  If  a  thing  lost,  whose  existence  was  ignored,  should  re- 
appear, the  creditor  may  demand  it,  upon  returning  what  he  may  have 
received  by  reason  of  its  price. 


36i 

Art.  1735.  He  who  shall  have  stolen  or  robbed  a  certain  substance, 
shall  not  be  permitted  to  plead  that  the  thing  has  been  destroyed  through 
a  fortuitous  accident,  even  of  those  which  would  have  produced  the 
destruction  or  loss  of  the  certain  substance  in  possession  of  the  creditor. 

Art.  1736.  Even  though  by' the  destruction  of  the  thing  the  obli- 
gation of  the  debtor  should  be  extinguished,  the  creditor  may  demand 
that  the  rights  and  actions  which  the  debtor  may  have  against  those 
through  whose  act  or  fault  the  thing  perished,  be  ceded  to  him. 

1668,  1959  ^  secL-     33  of  law  57  °f  1887.  —  _ 

Art.  1737.  If  the  thing  due  be  destroyed  by  a  voluntary  act  of  the 
debtor,  who  without  fault  ignored  the  obligation,  the  price  only  shall 
be  due,  without  any  further  indemnity  for  damages. 

Art.  1738.  In  the  act  or  fault  of  the  debtor  is  comprised  the  act  or 
fault  of  the  persons  for  whom  he  may  be  responsible. 

63,  2347  et  seq 

Art.  1 739.  The  destruction  of  the  thing  in  the  possession  of  the  debtor, 
after  it  shall  have  been  offered  to  the  creditor,  and  during  the  default  of 
the  latter  in  receiving  it,  renders  the  debtor  liable  only  for  a  grave  fault 
or  fraud. 


362 


TITLE    XX. 
Of  Nullity  and  Rescission. 

Art.  i  740.  Any  act  or  contract  which  lacks  any  of  the  requisites  pre- 
scribed by  law  for  the  validity  of  the  said  act  or  contract  according  to 
its  kind  or  class  and  the  status  of  the  parties,  is  null. 

The  nullity  may  he  absolute  or  relative. 

1502,  1504,  1500. 

Art.  1 74 1.  The  nullity  produced  by  an  illicit  object  or  cause  (con- 
sideration), and  the  nullity  produced  by  the  omission  of  some  requisite 
or  formality  prescribed  by  law  for  the  validity  of  certain  acts  or  con- 
tracts in  view  of  the  nature  thereof,  and  not  the  quality  or  status  of  the 
persons  executing  or  performing  them,  are  absolute  nullities. 

There  is  also  an  absolute  nullity  in  acts  or  contracts  of  persons  abso- 
lutely incapable. 

Any  other  kind  of  vice  produces  a  relative  nullity,  and  gives  right  to 
the  rescission  of  the  act  or  contract. 

Art.  1742.  The  absolute  nullity  can  and  must  be  declared  by  the 
Judge  or  Prefect,  even  without  a  petition  of  a  party,  when  it  is  mani- 
festly evident  in  the  act  or  contract;  it  may  be  pleaded  by  any  person 
having  an  interest  therein,  excepting  the  person  who  has  executed  the 
act  or  celebrated  the  contract,  knowing  or  being  obliged  to  know  of  the 
vice  which  invalidated  it ;  his  declaration  may  likewise  be  demanded  by 
the  Department  of  Public  Prosecution  (Ministerio  Publico)  in  the  in- 
terests of  mprals  or  of  the  law;  and  it  cannot  be  cured  by  the  ratification 
of  the  parties,  nor  by  a  lapse  of  time  under  thirty  years. 

532,  541,  629,  630,  2531  rule  3,  cases  1  and  2,  2532.     90  of  law 
153  of  1887. 

Art.  1743.  The  relative  nullity  can  be  declared  by  the  Judge  or  Pre- 
fect only  at  the  instance  of  a  party;  nor  can  such  declaration  be  de- 
manded by  the  Department  of  Public  Prosecution  in  the  sole  interest  of 
the  law ;  nor  can  it  be  pleaded  by  any  persons  but  those  in  whose  benefit 
it  has  been  established  by  the  laws,  or  by  their  heirs  or  assigns ;  and  it 
may  be  cured  by  the  lapse  of  time  or  by  the  ratification  of  the  parties. 

The  incapacity  of  a  married  woman  who  has  acted  without  the  author- 
ity of  the  husband  or  of  the  Judge  or  Prefect  in  substitution,  when  she 
should  have  obtained  it,  shall  be  understood  as  established  for  the  benefit 
of  the  said  wife  and  of  the  husband. 

vSee  citations  to  preceding  article,  and  article  2513,  which  is  an 
illustration. 


363 

Art.  1744.  If  on  the  part  of  an  incapacitated  person  there  should 
have  been  fraud  to  induce  the  act  or  contract,  neither  he  nor  his  heirs  or 
assigns  can  plead  nullity. 

Nevertheless,  an  assertion  of  being  of  age  or  that  the  interdiction  or 
other  cause  of  incapacity  does  not  exist,  will  not  disqualify  the  in- 
capacitated person  from  obtaining  a  judgment  of  nullity. 

1515. 

Art.  1745.  The  acts  or  contracts  of  incapacitated  persons,  in  which 
the  necessary  formalities  and  requisites  have  not  been  omitted,  cannot 
be  declared  null  nor  rescinded,  except  for  the  causes  under  which  persons 
having  the  free  administration  of  their  property  would  enjoy  this  benefit. 

Public  corporations  and  juristic  persons  are  assimilated  as  to  the  nullity 
of  their  acts  or  contracts  to  persons  under  tutorship  or  guardianship. 

Art.  1746.  The  nullity  pronounced  by  a  judgment  which  has  the 
force  of  res  judicata,  entitles  the  parties  to  be  restored  to  the  same  state 
in  which  they  would  have  been  if  the  null  act  or  contract  had  not 
existed ;  without  prejudice  to  the  provisions  regarding  illicit  objects  or 
causes  (considerations.) 

In  the  mutual  restitutions  which  the  contracting  parties  may  have  to 
make  by  virtue  of  this  judgment,  each  shall  be  responsible  for  the  loss 
of  the  specific  things  or  their  deterioration,  for  the  interest  and  fruits, 
and  the  allowance  of  the  necessary  improvements,  useful  or  of  luxury, 
taking  into  consideration  fortuitous  accidents,  and  the  possession  in 
good  or  bad  faith  of  the  parties ;  all  according  to  the  general  rules  and 
without  prejudice  to  the  provisions  of  the  following  article. 

963  et  seq.y  1948  par.  2,  768. 

Art.  1747.  If  a  contract  celebrated  with  an  incapacitated  person 
without  the  requisites  required  by  law  is  declared  null,  he  who  con- 
tracted with  said  person  cannot  demand  the  restitution  or  reimburse- 
ment of  what  he  may  have  spent  or  paid  by  virtue  of  the  contract,  except 
in  so  far  as  he  shall  establish  that  the  incapacitated  person  profited 
therefrom. 

It  shall.be  presumed  that  the  latter  has  profited,  in  so.  far  as  the 
things  paid  or  the  things  acquired  by  means  thereof  should  have  been 
necessary  to  him ;  or  in  so  far  as  the  things  paid  or  those  acquired  by 
11  nans  of  the  same,  which  should  not  have  been  necessary  to  him,  shall 
subsist  and  it  is  desired  to  retain  them. 

963,  964,  1636,  2243,  2304,  2309,  192,  261,  1806  par.  2,  1545. 
Art.  1748.  A  nullity  judicially  declared  produces  an  action  for  reven- 


364 

dication  against  third  possessors,  without  prejudice  to  the  legal  excep- 
tions. 

1812,  947  par.  2,  1933,  1934,  1951  par.  2. 

Art.  1749.  When  two  or  more  persons  have  contracted  with  a  third 
person,  the  nullity  declared  in  favor  of  one  of  them  shall  not  avail  the 
others. 

17,  2484  par.  2. 

Art.  1750.  The  term  within  which  to  demand  the  rescission  shall 
last  four  years. 

This  period  of  four  years  shall  be  counted,  in  a  case  of  violence, 
from  the  day  on  which  the  violence  may  have  ceased;  in  a  case  of 
error  or  of  fraud,  from  the  day  of  the  celebration  of  the  act  or  contract. 

When  the  nullity  arises  from  a  legal  incapacity,  the  term  of  four  years 
shall  be  counted  from  the  day  upon  which  this  incapacity  may  have 
ceased. 

The  term  of  four  years  shall  be  doubled  for  juristic  persons  who  by 
assimilation  to  minors  may  have  the  right  to  demand  the  declaration  of 
nullity,  and  shall  be  counted  from  the  date  of  the  contract. 

All  of  this  is  understood  in  the  cases  in  which  another  term  shall  not 
have  been  fixed  by  special  laws. 

1484,  1838  par.  3,  1913,  1487,  1954. 

Art.  1 75 1.  Heirs  who  have  attained  legal  age  shall  enjoy  the  full 
term  of  four  years  if  it  should  not  have  begun  to  run ;  and  shall  enjoy 
the  remainder,  otherwise.  With  regard  to  heirs  who  are  minors,  the 
term  of  four  years  or  the  remainder  thereof  begins  to  run  from  the  day 
they  attain  their  majority. 

But  in  such  case  the  declaration  of  nullity  cannot  be  demanded  if 
thirty  years  shall  have  elapsed  from  the  date  of  the  celebration  of  the 
act  or  contract. 

1487,  2531  rule  3,  conditions  1  and  2,  2532. 

Art.  1752.  The  ratification  necessary  to  cure  the  nullity  when  the 
vice  of  the  contract  is  susceptible  of  this  remedy,  may  be  express  or 
implied. 

Art.  1753.  In  order  that  an  express  ratification  may  be  valid,  it  must 
be  made  with  the  formalities  to  which  the  act  or  contract  ratified  is 
subject  in  accordance  with  the  law. 

Art.  1754.  An  implied  ratification  is  the  voluntary  execution  of  the 
obligation  contracted. 

Art.  1755.  Neither  an  express  nor  an  implied  ratification  shall  be 


365 

valid  if  it  does  not  emanate  from  the  party  or  parties  having  a  right  to 
plead  the  nullity. 

Art.  1756.  The  express  or  implied  ratification  of  one  who  is  incapa- 
ble of  contracting  is  not  valid. 


TITLE  XXI. 
Of  the  Proof  Of  Obligations.* 

Art.  1757.  The  burden  of  the  proof  of  obligations  or  their  extinction 
is  upon  the  person  who  pleads  either. 

The  proofs  consist  of  public  or  private  instruments,  witnesses,  pre- 
sumptions, confession  of  the  party,  deferred  oath  and  personal  inspec- 
tion by  the  Judge  or  Prefect. 

512,  1604  par.  3,  1733,  2242,  2249,  2316. 

Art.  1758.  A  public  or  authentic  instrument  is  that  authorized  with 
the  legal  formalities  by  the  competent  official. 

When  executed  before  a  notary  or  the  person  discharging  his  duties, 
and  incorporated  in  the  respective  protocol,  it  is  called  a  public  docu- 
ment (escritura  publico). 

Art.  1759.  A  public  instrument  is  full  proof  with  regard  to  the  fact 
of  the  execution  and  the  date  thereof ;  but  not  with  regard  to  the  truth 
of  the  declarations  which  the  persons  interested  may  have  made  therein. 
In  this  part  they  are  full  proof  only  against  the  persons  making  them. 

The  obligations  and  discharges  contained  therein  are  full  proof  with 
regard  to  the  parties  thereto  and  the  persons  to  whom  said  obligations 
and  discharges  may  be  transferred  under  a  universal  or  singular  title. 

1822,  1934,  394,  17,  1602,  2484,  2505. 

Art.  1760.  The  absence  of  a  public  instrument  cannot  be  supplied 
by  other  proof  in  the  acts  or  contracts  in  which  the  law  requires  this 
formality;  and  they  shall  be  considered  as  not  executed  or  celebrated, 
even  though  a  promise  be  made  therein  to  embody  them  in  a  public  in- 
strument, within  a  certain  term,  under  a  penal  clause :  such  clause  shall 
have  no  effect  whatsoever. 

*This  title  has  been  supplemented  by  law  153  of  1887,  articles  91  to  93. 


366 

With  the  exception  of  the  cases  indicated  in  this  article,  an  instrument 
which  is  defective  on  account  of  the  lack  of  jurisdiction  of  the  official,  or 
for  another  fault  in  the  form,  shall  be  valid  as  a  private  instrument  if 
signed  by  the  parties. 

1769,  239,  212,  1457,  1460,  1461,  1548,  1772  par.  2,  1781,  No.  6, 
par.  2,  1789,  1843,  1846,  1857  par.  2,  1940,  2292,  2434,  2457 
last  par.  22,  760,  1526.     56,  89,  106,  127  of  law  153  of  1887. 

Art.  1 76 1.  A  private  instrument,  acknowledged  by  the  party  against 
whom  it  is  opposed,  or  which  has  been  ordered  acknowledged  in  the 
cases  and  with  the  requisites  prescribed  by  law,  has  the  value  of  a  public 
instrument  with  regard  to  those  who  appear  or  are  reputed  to  have  sub- 
scribed them,  and  the  persons  to  whom  the  obligations  and  rights  of  the 
latter  have  been  transferred. 

752. 

Art.  1762.  The  date  of  a  private  instrument  is  not  counted  with  re- 
gard to  third  persons,  but  from  the  date  of  the  death  of  any  of  those  who 
have  signed  it,  or  from  the  date  on  which  it  was  copied  in  a  public  register, 
or  on  which  it  appears  to  have  been  produced  in  court,  or  on  which  it 
may  have  been  considered  and  inventoried  by  a  competent  official  in 
such  character. 

Art.  1763.  Domestic  entries,  registers  and  papers,  are  proof  only 
against  the  person  who  has  written  or  signed  them;  but  only  in  that 
which  appears  clearly,  and  provided  that  the  party  desiring  to  avail  him- 
self thereof  does  not  reject  them  in  the  part  unfavorable  to  him. 

Art.  1 764.  A  note  written  or  signed  by  the  creditor  at  the  foot  of, 
in  the  margin  or  on  the  back  of  an  instrument  which  has  always  been  in 
his  possession,  is  proof  in  all  that  is  favorable  to  the  debtor. 

The  same  applies  to  a  note  written  or  signed  by  the  creditor,  at  the 
foot  of,  in  the  margin  or  on  the  back  of  the  duplicate  of  an  instrument, 
if  said  duplicate  be  in  the  possession  of  the  debtor. 

But  a  debtor  desiring  to  avail  himself  of  the  portion  of  the  memo- 
randum favorable  to  him,  must  also  accept  that  portion  which  is  un- 
favorable to  him. 

Art.  1 765.  A  public  or  private  instrument  is  proof  between  the  parties 
even  of  what  is  there  expressed  in  enunciative  terms,  provided  that  the 
enunciation  have  a  direct  reference  to  the  dispositive  portion  of  the  act 
or  contract. 

Art.  1 766.  Private  instruments,  made  by  the  contracting  parties  for 
the  purpose  of  altering  the  agreements  contained  in  a  public  instrument, 
shall  not  produce  any  effect  against  third  persons. 

Nor  shall  any  such  effect  be  produced  by  counter-instruments,  when 
their  contents  shall  not  have  been  noted  in  the  margin  of  the  original 


3^7 

instrument,  whose  provisions  are  altered  in  the  counter-instrument,  and 
of  the  copy  by  virtue  of  which  the  third  person  has  acted. 

1779. 

Art.  1767.  The  evidence  of  witnesses  shall  not  be  admissible  as  to 
an  obligation  which  should  have  been  reduced  to  writing.* 

2242. 

Art.  1768.  Presumptions  are  legal  or  .judicial. 

Legal  presumptions  are  governed  by  article  66. 

Those  deduced  by  the  Judge  must  be  weighty,  precise  and  consistent. 

Art.  1769.  The  confession  made  in  court  either  personally  or  through 
an  attorney-in-fact,  with  regard  to  a  personal  act  of  the  same  party,  is 
full  proof  against  him,  and  no  proof  shall  be  admissible  against 
such  party,  excepting  in  case  it  be  duly  proved  that  the  party  making  it 
was  laboring  under  an  error  of  fact,  or  that  he  was  not  in  the  full  enjoy- 
ment of  his  senses  at  the  time  of  making  it. 

202,  1 120,  1 191,  1795  pars.  2  and  3,  1934,2046,2505,1510,1511. 
89  of  law  153  of  1887,  which  article  repeals  art.  161  r  of  the 
Civil  Code. 

Art.  1770.  The  provisions  of  the  Judicial  Code  shall  be  observed  with 
regard  to  the  oath  deferred  by  the  Judge  or  Prefect  or  by  one  of  the 
parties  to  the  other,  and  with  regard  to  the  personal  inspection  of  the 
Judge  or  Prefect. 

*See  in  law  153  of  1887,  articles  91  to  93,  which  supplement  this  Tit'e. 


368 


TITLE  XXII. 

Of  Marriage  Agreements  and  tlie  Conjugal  Partnership. 

Chapter  i. 

General  Rules. 

Art.  1771.  Under  the  name,  of  marriage  agreements  are  known  the 
contracts  celebrated  by  the  spouses  before  contracting  marriage,  regard- 
ing the  property  they  bring  thereto,  and  the  mutual  present  or  future 
donations  and  concessions  they  may  wish  to  make. 

1810  No.  1,  1844. 

Art.  1772.  Marriage  agreements  shall  be  executed  by  a  public  instru- 
ment ;  but  when  the  property  brought  to  the  marriage  by  both  spouses 
together  does  not  exceed  one  thousand  pesos  in  value,  and  no  rights  in 
real  property  are  constituted  in  the  marriage  agreements,  it  shall  be 
sufficient  that  they  be  embodied  in  a  private  instrument,  signed  by  the 
parties  and  by  three  witnesses  domiciled  in  the  Territory. 

Otherwise  they  shall  not  be  valid. 

1760,  1769,  1 781  No.  4  par.  2,  and  No.  6,  par.  2,  756. 

Art,  1773.  Marriage  agreements  shall  not  contain  any  stipulations 
contrary  to  good  morals  or  to  the  law.  They  shall  not,  therefore,  be 
detrimental  to  the  rights  and  obligations  which  are  imposed  by  law  upon 
each  spouse  with  respect  to  the  other  or  to  the  common  descendants. 

i&  198,  1250. 

Art.  1774.  In  the  absence  of  a  written  agreement,  the  conjugal  part- 
nership shall  be  considered  as  entered  into  in  accordance  with  the  pro- 
visions of  this  Title  by  the  mere  act  of  marriage. 

Art.  1775.  The  wife,  notwithstanding  the  conjugal  partnership,  may 
renounce  her  right  to  the  acquets  and  gains  resulting  from  the  adminis- 
tration of  her  husband,  provided  that  she  make  this  renunciation  before 
the  marriage  or  after  the  dissolution  of  the  partnership. 

What  is  stated  is  understood  without  prejudice  to  the  legal  effects 
of  the  separation  of  property  and  divorce. 

1809,  1837,  1840,  1 195  pars.  2  and  3,  1823,  198. 

Art.  1776.  It  may  be  stipulated  in  the  marriage  agreement  that  the 
wife  will  administer  a  part  of  her  own  property  independently  of  the 


3^9 

husband ;  and  in  such  case  the  rules  prescribed  in  Title  IX,  Chapter  3, 
of  Book  I,  shall  be  followed. 

It  may  also  be  stipulated  that  the  wife  shall  freely  dispose  of  a  fixed 
sum  of  money,  or  of  a  fixed  periodical  allowance,  and  such  agreement 
shall  have  the  same  effects  as  the  partial  separation  of  property ;  but  it 
shall  not  be  licit  for  the  wife  to  secure  loans  or  purchase  on  credit  upon 
said  sum  or  allowance. 

212,  1820  No.  3,  1796  last  par.,  301  par.  2,  192  par.  2. 

Art.  1777.  A  minor  able  to  contract  marriage  may  make  in  the  mar- 
riage agreement,  with  the  approval  of  the  person  or  persons  whose  con- 
sent he  may  have  needed  for  the  marriage,  all  the  stipulations  he  would 
be  able  to  make  were  he  of  age;  excepting  those  whose  purpose  is  to 
renounce  the  acquets  and  gains,  or  alienate  real  property,  or  encumber 
the  same  with  mortgages  or  servitudes.  It  shall  always  be  necessary 
that  the  court  authorize  the  minor  for  stipulations  of  this  character. 
He  who  is  under  curatorship  for  another  cause  than  minority,  shall 
require  the  authority  of  his  curator  for  the  marriage  agreements,  and 
shall  be  subject  to  the  same  rules  as  the  minor  as  to  the  rest. 

An  agreement  that  the  conjugal  partnership  begin  before  or  after  con- 
tracting marriage  cannot  be  made;  any  stipulation  to  the  contrary 
is  null. 

ii7,  339,  345,  4§3  et  seq.%  1837,  6  par.  2,  1526. 

Art.  1778.  Marriage  agreements  shall  not  be  considered  as  entered 
into  irrevocably,  except  from  the  day  of  the  celebration  of  the  marriage ; 
nor  after  its  celebration,  can  they  be  amended,  even  with  the  consent  of 
all  the  persons  who  were  parties  thereto. 

1602. 

Art.  1779.  Instruments  amendatory  or  supplementary  of  marriage 
agreements  shall  not  be  admissible  in  court,  unless  they  shall  have  been 
executed  before  the  marriage  and  with  the  same  formalities  as  the  origi- 
nal agreement. 

The  additions  or  changes  made  therein  shall  not  avail  against  third 
persons,  even  though  they  shall  have  been  made  in  due  time  and  with 
the  proper  requisites;  unless  a  memorandum  or  extract  of  the  subse- 
quent instruments  be  placed  in  the  margin  of  the  protocol  of  the  first 
instrument. 

1766. 

Art.  i  780.  The  marriage  agreement  shall  state  the  property  that  the 
spDuses  bring  to  the  marriage,  with  its  value  and  a  detailed  statement 
of  the  debts  of  each. 


37o 

Omissions  or  misstatements  which  may  be  incurred  in  this  regard, 
shall  not  annul  the  agreement ;  but  the  Notary  before  whom  it  is  drawn, 
shall  inform  the  parties  of  the  preceding  provision  and  shall  mention  it 
in  the  instrument,  under  the  penalty  that  the  laws  may  impose  upon 
him  for  his  negligence. 

472. 

Chapter  2. 

Of  the  Assets  of  the  Conjugal  Partnership  and  of  its  Charges. 

Art.  1 78 1 .  The  assets  of  the  conjugal  partnership  consist : 

1 .  Of  the  salaries  and  emoluments  of  any  kind  of  office  and  trade,  earned 
during  the  marriage. 

2.  Of  all  the  fruits,  interest,  pensions,  income  and  profit  from  what- 
soever source,  whether  from  the  community  property,  whether  from 
the  property  belonging  to  each  of  the  spouses  and  which  are  received 
during  the  marriage. 

3.  Of  the  money  which  either  of  the  spouses  brings  to  the  marriage, 
or  should  acquire  during  the  same,  the  community  obligating  itself  to 
the  restitution  of  a  similar  sum. 

4.  Of  the  consumable  things  and  specific  movables  which  either 
of  the  spouses  may  bring  to  the  marriage,  or  may  acquire  during  the 
same ;  the  community  being  bound  to  restore  the  value  thereof  accord- 
ing to  their  value  at  the  time  they  are  brought  to  the  marriage  or  when 
acquired. 

But  the  spouses  may  exempt  from  the  community  any  part  of  their 
specific  movables,  by  designating  them  in  the  agreement,  or  in  a  list 
signed  by  both  and  by  three  witnesses  domiciled  in  the  Territory. 

5.  Of  all  the  property  which  either  of  the  spouses  may  acquire  during 
the  marriage  under  an  onerous  title. 

6.  Of  the  duly  appraised  real  property  which  the  wife  brings  to  the 
marriage  in  order  that  the  partnership  may  restore  its  value  in  money. 

This  shall  be  stated  in  the  marriage  agreement  or  in  another  public 
instrument  drawn  at  the  time  of  the  contribution,  the  value  being  desig- 
nated, and  as  to  the  rest  the  proceedings  shall  be  as  in  a  contract  for  the 
sale  of  real  property. 

It  if  be  stipulated  that  the  certain  thing  which  the  wife  contributes, 
may  be  restored  in  money  at  the  option  of  the  said  wife  or  husband,  the 
rules  governing  alternative  obligations  shall  be  observed. 

1795,  1809,  2489  last  par.,  181 1,  1758,  1760,  1769,756,  1772,  1857 
par.  2,  1556. 

Art.  1782.  The  acquisitions  made  by  either  of  the  spouses  under 
title  of  donation,  inheritance  or  legacy,  shall  be  added  to  the  property 


37i 

of  the  spouse  who  is  the  donee,  heir,  or  legatee ;  and  the  acquisitions  of 
both  spouses  jointly,  under  any  of  these  titles,  shall  not  increase  the 
community  assets,  but  those  of  each  spouse. 

Art.  1783.  Notwithstanding  the  provisions  of  the  preceding  article, 
the  following  shall  not  be  added  to  the  community  assets : 

1 .  An  immovable  duly  subrogated  to  another  immovable  the  property 
of  either  of  the  spouses. 

2.  The  things  purchased  with  funds  belonging  to  one  of  the  spouses, 
assigned  to  the  same  in  the  marriage  agreement  or  in  a  donation  by 
reason  of  marriage. 

3.  All  the  material  increase  accruing  to  any  specific  thing  belonging 
to  one  of  the  spouses,  forming  one  body  with  it,  by  alluvion,  building, 
planting  or  any  other  cause. 

1789,  1827  par.  2,  1802. 

Art.  1 784.  The  land  adjoining  a  tenement  belonging  to  one  of  the 
spouses  and  acquired  by  him  or  her  during  the  marriage,  under  any  title 
which  makes  it  community  property,  according  to  article  1781,  shall  be 
understood  to  belong  to  the  community ;  unless  it  and  the  former  tenement 
shall  have  formed  a  tenement  or  building  from  which  the  land  latterly 
acquired  cannot  be  separated  without  damage ;  as  in  such  case  the  com- 
munity and  said  spouse  shall  be  co-owners  of  all  in  proportion  to  their 
respective  value  at  the  time  of  the  incorporation. 

Art.  1785.  The  ownership  of  the  things  which  one  of  the  spouses 
possessed  with  other  persons  pro  indiviso,  and  of  which  he  should 
become  the  owner  during  the  marriage,  under  any  onerous  title,  shall 
belong  pro  indiviso  to  said  spouse  and  the  community,  in  proportion  to 
the  value  of  the  quota  which  belonged  to  the  former  and  what  the  acqui- 
sition of  the  remainder  may  have  cost. 

1801. 

Art.  1786.  The  mines  denounced  by  one  of  the  spouses  or  by  both, 
shall  be  added  to  the  community  assets. 

Art.  1 787.  That  part  of  treasure  which,  according  to  the  law,  belongs  to 
the  person  finding  it,  shall  be  added  to  the  assets  of  the  spouse  finding 
it,  and  that  part  of  the  treasure  which  belongs  to  the  owner  of  the  land 
upon  which  it  may  be  found,  shall  be  added  to  the  assets  of  the  commun- 
ity, if  the  land  belong  to  the  latter,  or  to  the  assets  of  the  spouse  who 
may  be  the  owner  thereof. 


701. 

Art.  1788.  Things  donated  or  assigned  under  any  other  gratuitous 
title,  shall  be  understood  to  belong  exclusively  to  the  spouse  who  is 


372 

the  donee  or  assign ;  and  whether  the  donations  or  other  gratuitous  acts 
in  favor  of  one  spouse,  have  been  made  out  of  consideration  to  the  other, 
shall  not  be  considered. 

Art.  1789.  In  order  that  an  immovable  may  be  considered  as  subro- 
gated to  another  immovable  of  one  of  the  spouses,  it  shall  be  necessary 
that  the  second  shall  have  been  changed  for  the  first,  or  that,  the  second 
having  been  sold  during  the  marriage,  the  first  was  bought  with  its  price ; 
and  that  in  the  contract  of  exchange  or  of  purchase  and  sale,  the  inten- 
tion to  subrogate  be  expressed. 

An  immovable  may  also  be  subrogated  to  effects  belonging  to  one  of 
the  spouses  which  do  not  consist  of  real  property ;  but  in  order  that  the 
subrogation  may  be  valid,  it  shall  be  necessary  that  the  effects  shall  have 
been  destined  thereto,  in  accordance  with  No.  2,  of  article  1783,  and  that 
in  the  deed  of  purchase  of  the  immovable  the  application  of  said  effects 
and  the  intention  to  subrogate  shall  appear. 

1760,  1668,  1797. 

Art.  1 790.  If  one  estate  be  subrogated  to  another,  and  the  sale  price 
of  the  old  estate  should  exceed  the  purchase  price  of  the  new  one,  the 
community  shall  owe  this  excess  to  the  spouse  making  the  subrogation ; 
and  if,  on  the  contrary,  the  purchase  price  of  the  new  estate  should 
exceed  the  sale  price  of  the  old  one,  the  subrogating  spouse  shall  owe 
this  excess  to  the  community. 

If  upon  two  estates  being  exchanged,  a  balance  is  received  in  cash,  the 
community  shall  owe  this  balance  to  the  spouse  making  the  subrogation ; 
and  if,  on  the  contrary,  a  balance  should  be  paid,  said  spouse  shall  owe  it 
to  the  community. 

The  same  rule  shall  be  applied  in  the  case  of  subrogating  an  immov- 
able for  values. 

But  a  subrogation  shall  not  be  understood,  when  the  balance  in  favor 
or  against  the  community  shall  exceed  one-half  the  price  of  the  estate 
which  is  received,  which  shall  then  form  part  of  the  community  assets, 
the  community  being  obligated  to  the  spouse  for  the  price  of  the  estate 
alienated  or  for  the  values  invested,  and  the  latter  preserving  the  right  to 
carry  the  subrogation  into  effect,  by  purchasing  another  estate. 

1801. 

Art.  1 79  i.  The  subrogation  made  in  property  of  the  wife  requires, 
furthermore,  judicial  authority  after  an  investigation. 

1810,  1811. 

Art.  1792.  A  specific  thing  acquired  during  the  partnership  does  not 
belong  to  the  community  even  though  acquired  under  an  onerous  title, 
when  the  consideration  or  title  of  the  acquisition  preceded  it. 


373 

Consequently : 

i .  The  specific  things  that  one  of  the  spouses  possessed  as  owner  before 
the  partnership,  shall  not  belong  to  it,  even  though  the  prescription  or 
transaction  under  which  he  shall  have  made  them  really  his  own,  was 
completed  or  effected  during  the  same. 

2.  Nor  the  property  possessed  before  the  same  by  a  vicious  title,  but 
which  vice  was  purged  during  the  same  by  ratification,  or  by  any  other 
legal  remedy. 

3.  Nor  the  property  returning  to  one  of  the  spouses  by  the  nullity  or 
resolution  of  a  contract,  or  by  the  revocation  of  a  donation. 

4.  Nor  litigious  property  of  which  during  the  partnership  one  of  the 
spouses  has  obtained  pacific  possession. 

5.  Nor  shall  the  right  of  usufruct  joined  with  the  ownership  vested 
in  the  same  spouse  belong  to  the  community ;  the  fruits  only  shall  belong 
to  the  community. 

6.  What  is  paid  to  either  of  the  spouses  as  the  principal  of  credits 
constituted  before  the  marriage,  shall  belong  to  the  creditor  spouse. 

The  same  shall  apply  to  the  interest  due  one  of  the  spouses  before  the 
marriage  and  paid  thereafter. 

2489  par.  3. 

Art.  1793.  The  property  which  should  have  been  acquired  by  one  of 
the  spouses  during  the  partnership,  and  which  in  fact  is  not  acquired 
until  after  the  dissolution  of  the  community,  on  account  of  not  having 
had  notice  thereof  or  by  reason  of  its  acquisition  or  enjoyment  having 
been  unjustly  embarrassed,  shall  be  considered  as  having  been  acquired 
during  the  partnership. 

The  fruits  which  without  this  lack  of  information,  or  without  this 
embarrassment  should  have  been  received  by  the  partnership,  and  which 
after  its  dissolution  shall  have  been  restored  to  said  spouse  or  to  his 
heirs,  shall  be  considered  as  belonging  to  the  community. 

Art.  1794.  Remuneratory  donations,  made  to  one  or  both  of  the 
spouses  for  services  which  gave  no  right  of  action  against  the  person 
served,  do  not  increase  the  community  assets;  but  those  made  for 
services  which  would  have  given  a  right  of  action  against  such  person, 
shall  increase  the  community  assets,  to  the  amount  which  could  have 
>een  sued  for,  and  not  more;  unless  said  services  shall  have  been  ren- 
dered before  the  partnership,  as  in  such  case  no  part  of  said  donations 
shall  be  adjudicated  to  the  community. 

Art.  1795.  Every  sum  of  money  and  amount  of  consumable  (fungi- 
ble) things,  all  effects,  credits,  rights  and  actions  in  the  hands  of 
either  of  the  spouses  at  the  time  of  the  dissolution  of  the  community, 
shall  be  presumed  to  belong  to  it,  unless  the  contrary  shall  appear  or  be 
proved. 


m 

Nor  shall  the  declaration  of  one  of  the  spouses  who  affirms  that  a 
thing  is  his  or  hers  or  is  due  him  or  her,  nor  the  confession  of  the  other, 
nor  both  together,  be  considered  sufficient  proof,  even  though  made 
under  oath. 

The  confession,  nevertheless,  shall  be  considered  as  a  revocable  dona- 
tion which,  being  confirmed  by  the  death  of  the  donor,  shall  be  executed 
from  his  share  of  the  acquets  and  gains  or  his  own  property,  to  the  ex- 
tent necessary. 

Nevertheless,  his  clothing,  and  all  the  movables  of  his  necessary  per- 
sonal use,  shall  be  considered  as  belonging  to  his  wife. 

66,  1800,  1801,  202,  1 191,  2505,  1 196.  i 

Art.  1796.  The  community  is  bound  for  the  payment: 

1 .  Of  all  the  pensions  and  interest  running,  whether  against  the  part- 
nership, or  either  of  the  spouses,  which  fall  due  during  the  partnership. 

2.  Of  the  debts  and  obligations  contracted  during  the  marriage  by 
the  husband,  or  by  the  wife  with  the  authority  of  the  husband,  or  of  the 
court  in  substitution,  and  which  shall  not  be  personal  of  the  former  or 
of  the  latter,  as  would  be  those  contracted  for  the  establishment  of  the 
children  of  a  former  marriage. 

The  partnership,  consequently,  is  bound  with  the  same  limitation, 
for  the  payment  of  every  surety,  mortgage  or  pledge  constituted  by  the 
husband. 

3.  Of  all  the  personal  debts  of  each  of  the  spouses,  the  debtor  being 
obliged  to  compensate  the  community  for  what  the  latter  may  expend 
therein. 

4.  Of  all  the  usufructuary  charges  and  repairs  of  the  community 
property  of  each  spouse. 

5.  Of  the  maintenance  of  the  spouses;  of  the  maintenance,  education 
and  establishment  of  the  common  descendants,  and  of  all  other  family 
charges. 

As  a  family  charge  shall  be  considered  the  support  which  one  of  the 
spouses  is  obliged  by  law  to  furnish  to  his  ascendants  or  descend- 
ants, although  they  be  not  of  both  spouses;  but  the  Judge  or  Prefect 
may  reduce  this  expense,  if  it  should  appear  to  him  to  be  excessive, 
imputing  the  excess  to  the  assets  of  the  spouse. 

If  the  wife  reserves  to  herself  the  right  in  the  marriage  agreement 
that  there  be  delivered  to  her  in  a  lump  sum  or  in  installments  an  amount 
of  money  of  which  she  may  dispose  at  her  will,  such  payment  shall  be 
defrayed  by  the  community,  provided  that  it  shall  not  have  been  ex- 
pressly imposed  upon  the  husband  in  the  marriage  agreement. 

-     1806  par.  2,  1807,  183,  188,  191,  855,  856,  257,  423,  1776  par.  2. 


375 

Art.  i  797.  If  a  thing  belonging  to  the  husband  or  to  the  wife  be  sold, 
the  community  shall  owe  the  price  to  the  spouse  making  the  sale,  except- 
ing in  so  far  as  said  price  shall  have  been  applied  to  the  subrogation 
referred  to  in  article  1 789,  or  to  another  personal  matter  of  the  spouse  to 
whom  the  thing  sold  belonged,  as  in  the  payment  of  his  personal  debts, 
or  in  the  establishment  in  business  of  his  descendants  from  a  former 
marriage. 

Art.  1798.  The  husband  or  the  wife  shall  owe  the  community  the 
value  of  every  donation  he  or  she  may  make  from  any  part  of  the  com- 
munity assets,  unless  it  be  of  small  value,  taking  into  consideration  the 
extent  of  the  partnership  assets,  or  unless  it  be  made  for  an  object  of 
eminent  piety  or  beneficence  and  without  seriously  affecting  said  assets. 

1825,  1840,  1803. 

Art.  1799.  _If  the  husband  or  the  wife  shall  dispose  mortis  causa,  of  a 
specific  thing  belonging  to  the  community,  the  assign  of  said  specific 
thing  may  sue  the  succession  of  the  testator  therefor,  if  the  thing,  in  the 
division  of  the  acquets  and  gains,  shall  have  been  adjudicated  to  the 
heirs  of  the  testator;  but  otherwise,  he  shall  only  have  the  right  to  sue 
the  succession  of  the  testator  for  its  price. 

1 168,  1401. 

Art.  1800.  The  ordinary  and  extraordinary  expenses  of  the  edu- 
cation of  a  common  descendant,  and  those  incurred  in  setting  him 
up  in  business  or  to  marry  him,  shall  be  imputed  to  the  acquets  and 
gains,  unless  it  shall  appear  in  an  authentic  manner  that  the  husband, 
or  the  wife  with  the  authority  of  the  husband  or  of  the  court  in  substi- 
tution, or  both  jointly,  desired  that  these  expenses  should  be  taken  from 
their  private  property.  Even  when  such  expenses  are  taken  imme- 
diately from  the  private  property  of  either  of  the  spouses,  it  shall  be 
understood  to  be  done  for  the  account  of  the  community,  unless  a  state- 
ment to  the  contrary  be  made. 

In  the  event  of  such  expenses  having  been  defrayed  by  the  husband, 
without  contradiction  or  objection  on  the  part  of  the  wife,  and  it  not 
being  evident  in  an  authentic  manner  that  the  husband  intended  to  pay 
them  out  of  his  own  property,  the  husband  or  his  heirs  may  demand 
that  they  be  reimbursed  one-half  that  part  of  said  expenses  not  covered 
by  the  acquets  and  gains  out  of  the  private  property  of  the  wife;  and 
the  Judge  or  Prefect  shall  in  his  discretion  grant  this  demand  in  whole 
or  in  part,  taking  into  consideration  the  amount  and  obligations  of  the 
patrimonies,  and  the  discretion  and  moderation  observed  by  the  hus- 
band in  the  payment  of  said  expenses. 

All  this  is  applicable  to  a  case  where  the  descendant  has  no  property 
of  his  own;  for,  should  he  have  any,  the  extraordinary  expenses  shall  be 


376 

imputed  to  his  property,  in  so  far  as  they  can  be  covered  thereby,  and 
in  so  far  as  they  shall  have  been  actually  beneficial  to  him ;  unless  it  shall 
appear  in  an  authentic  manner  that  the  husband,  or  the  wife  duly  author- 
ized, or  both  jointly,  wished  to  defray  them  from  their  own. 

66,  1795,  1758,  1825,  257  last  par.,  1256. 

Art.  1 80 1.  In  general,  the  prices,  balances,  judicial  costs  and  expen- 
ses of  all  kinds  incurred  in  the  acquisition  or  collection  of  the  property, 
rights  or  credits  belonging  to  either  of  the  spouses,  shall  be  presumed  as 
incurred  by  the  community,  in  the  absence  of  proof  to  the  contrary,  and 
must  be  credited  to  the  same. 

Consequently : 

The  spouse  who  acquires  property  under  an  inheritance,  owes  reim- 
bursement to  the  community  for  all  the  debts  and  hereditary  or  testa- 
mentary charges  which  he  may  cover,  and  for  all  the  costs  of  the  acqui- 
sition; excepting  the  amounts  which  he  shall  prove  to  have  covered 
with  the  said  hereditary  property  or  with  his  own. 

66,  1795,  1785,  1790,  1825. 

Art.  1802.  Reimbursement  shall  also  be  due  the  community  for 
expenses  of  all  kinds  which  may  have  been  incurred  as  to  the  property 
of  either  of  the  spouses,  in  so  far  as  said  expenses  shall  have  increased 
the  value  of  the  property;  and  to  the  extent  of  the  existence  of  this 
value  at  the  date  of  the  dissolution  of  the  partnership;  unless  this  in- 
crease in  value  shall  exceed  that  of  the  expenses,  as  in  such  case  the 
amount  of  the  latter  only  shall  be  due. 

1783  par.  3,  965,  966,  855,  856,  1825. 

Art.  1803.  In  general,  the  community  must  be  reimbursed  for  every 
gratuitous  and  considerable  expenditure  in  favor  of  a  third  person  who 
is  not  a  common  descendant. 

1825,  1798. 

Art.  1804.  Each  spouse  owes  likewise  reimbursement  to  the  commu- 
nity for  the  damage  caused  it  through  fraud  or  grave  fault,  and  for  the 
payment  made  by  the  community  of  the  fines  and  pecuniary  damages 
to  which  such  spouse  may  have  been  sentenced  for  some  offense. 

21 19,  2326,  1825. 


377 


Chapter  3. 

Of  the  Ordinary  Administration  of  the  Property  of  the  Conjugal 

Partnership. 

Art.  1805.  The  husband  is  the  head  of  the  conjugal  partnership,  and 
as  such  freely  administers  the  community  property  and  that  of  his  wife ; 
being  subject,  nevertheless,  to  the  obligations  imposed  upon  him  by  this 
title  and  to  those  he  may  have  assumed  by  the  marriage  agreement. 

177,  1637,  180,  193,  1798,  2189  No.  8,  2502  No.  3. 

Art.  1806.  The  husband  is,  with  regard  to  third  persons,  the  owner 
of  the  community  property,  as  if  it  and  his  own  property  formed 
a  single  patrimony,  so  that  during  the  partnership,  the  creditors  of  the 
husband  may  levy  upon  the  property  of  the  latter  as  well  as  upon  the 
community  property ;  without  prejudice  to  the  reimbursement  or  com- 
pensation which  the  husband  may  owe  in  consequence  thereof  to  the 
community,  or  the  community  to  the  husband. 

Nevertheless,  the  creditors  may  enforce  their  rights  upon  the  prop- 
erty of  the  wife  by  virtue  of  a  contract  celebrated  by  them  with  the  hus- 
band, in  so  far  as  it  be  proved  that  the  contract  was  entered  into  for  the 
personal  benefit  of  the  wife,  as  for  the  payment  of  her  debts  contracted 
before  the  marriage. 

180  par.  2,  2489  par.  3,  1834,  2°6,  191  pars.  2  and  3,  1747,  1796 
No.  2,  1833. 

Art.  1807.  Every  debt  contracted  by  the  wife  under  a  general  or 
special  power  of  attorney,  or  with  the  express  or  implied  authority  of 
the  husband,  is,  with  regard  to  third  persons,  a  debt  of  the  husband,  and 
consequently  of  the  community;  and  the  creditor  cannot  enforce  the 
payment  of  this  debt  against  the  private  property  of  the  wife,  but  only 
against  the  property  of  the  community  and  against  the  private  property 
of  the  husband ;  without  prejudice  to  the  provisions  of  the  second  para- 
graph of  the  preceding  article. 

The  contracts  entered  into  by  the  husband  and  by  the  wife  jointly,  or 
in  which  the  wife  binds  herself  solidarity  and  subsidiarily  with  the  hus- 
band, shall  not  avail  against  the  private  property  of  the  wife,  excepting 
in  the  cases  and  terms  of  the  aforesaid  second  paragraph. 

183,  188,  191  par.  2,  192,  195.     See  citations  to  preceding  article. 

Art.  1808.  The  wife  alone  has  no  right  whatsoever  in  the  community 
property  during  the  existence  of  the  partnership.     The  authority  of  the 


378 

court  in  substitution  produces  no  other  effects  than  those  declared  in 
article  191. 

182. 

Art.  1809.  Even  though^ the  wife,  in  the  marriage  agreement,  shall 
renounce  the  acquets  and  gains,  she  shall  not  thereby  have  the  power  to 
receive  the  fruits  of  her  own  property,  which  shall  be  understood  as 
granted  to  the  husband  to  support  the  charges  of  the  marriage,  with  the 
obligation  of  preserving  and  restoring  said  property,  as  will  be  stated 
below. 

What  has  been  stated  shall  be  understood  without  prejudice  to  the 
rights  of  a  woman  divorced  or  separate  in  property. 

2489  par.  3,  1781,  1775,  203,  211,  No.  5,  162. 

Art.  1 8 10.  The  real  property  of  the  wife,  which  the  husband  is  or  may 
be  obliged  to  restore  in  kind,  cannot  be  alienated  or  mortgaged  except- 
ing with  the  consent  of  the  wife  and  upon  a  decree  of  the  Judge  or  of  the 
Prefect,  after  an  investigation  into  the  facts. 

The  consent  of  the  wife  may  be  supplied  by  the  Judge  or  Prefect  when 
she  is  incapacitated  from  expressing  her  will. 

The  causes  justifying  the  alienation  and  mortgage  shall  be  the  follow- 
ing only : 

1 .  Power  granted  therefor  in  the  marriage  agreement. 

2.  The  manifest  necessity  or  utility  of  the  wife. 

749,  1771,  1791,  189,  303,  483,  1815. 

Art.  181 1.  In  order  to  alienate  other  property  of  the  wife,  which  the 
husband  is  or  may  be  obliged  to  restore  in  kind,  the  consent  of  the  wife 
shall  be  sufficient,  which  consent  may  be  supplied  by  the  Judge  or  Pre- 
fect, when  the  wife  is  incapable  of  expressing  her  will. 

483,  1815  par.  2,  188. 

Art.  181 2.  If  the  wife  or  her  heirs  shall  prove  that  a  portion  of  her 
property  has  been  alienated,  mortgaged  or  pledged  without  the  requisites 
prescribed  in  the  preceding  articles,  they  may  exercise  the  right  of  re- 
vendication,  or  demand  the  restitution  of  the  pledge  or  cancellation  of 
the  mortgage,  in  the  cases  in  which  as  a  general  rule  these  actions  lie. 

They  shall  likewise  have  the  right  to  recover  damages  against  the 
property  of  the  husband  in  the  cases  in  which  they  cannot  or  do  not 
desire  to  exercise  these  rights  against  third  persons. 

Third  persons  who  have  been  evicted  shall  have  an  action  of  warranty 


379 

against  the  husband,  and  if  the  damages  be  paid  with  community  prop- 
erty, the  husband  must  restore  it. 

946,  1748,  1 815  par.  3. 

Art.  1813.  The  husband  cannot  give  in  lease  the  rural  property  of 
the  wife  for  more  than  eight  years,  nor  her  urban  property  for  more  than 
five ;  and  she  or  her  heirs,  upon  the  dissolution  of  the  community,  shall 
be  bound  to  respect  the  lease  contract  which  may  have  been  entered 
into  for  a  period  of  time  not  exceeding  the  limits  above  mentioned. 

Nevertheless,  the  lease  may  last  longer,  if  the  husband  and  the  wife 
should  jointly  agree  thereto,  and  the  intervention  of  the  wife  may  be 
supplied  by  the  Judge  or  Prefect  when  she  is  unable  to  act. 

304,  496,  181 7  par.  2,  2027. 


Chapter  4. 

Of  the  Extraordinary  Administration  of  the  Conjugal  Partnership. 

Art.  1 8 14.  A  woman  who,  in  the  event  of  the  interdiction  of  her  hus- 
band, or  on  account  of  the  long  absence  of  the  latter  without  communi- 
cating with  his  family,  may  have  been  appointed  the  curatrix  of  her 
husband,  or  the  curatrix  of  his  property,  shall  by  said  act  have  the 
administration  of  the  conjugal  community. 

587  No.  3,  538,  539,  551,  550,  1818. 

Art.  1815.  The  wife  having  the  administration  of  the  partnership, 
shall  administer  with  the  same  powers  as  the  husband,  and  may,  fur- 
thermore, herself  execute  the  acts  for  the  legality  of  which  the  husband 
requires  the  consent  of  the  wife;  obtaining  special  authority  from  the 
Judge  or  Prefect  in  the  cases  in  which  the  husband  would  have  been 
required  to  do  so. 

But  she  cannot,  without  special  authority  from  the  court,  after  an 
investigation  of  the  reasons,  alienate  the  real  property  of  her  husband, 
nor  encumber  the  same  with  mortgages  or  rent  charges,  nor  make  sub- 
rogations therein,  nor  accept,  unless  under  the  benefit  of  inventory,  an 
inheritance  deferred  to  her  husband. 

Any  act  in  contravention  of  these  restrictions,  shall  be  null,  and  shall 
make  her  liable  in  her  property,  in  the  same  manner  the  husband  would 
be  in  his,  for  an  abuse  of  his  administrative  powers. 

191,  188,  749,  1810,  181 1,  211,  1307  pars.  2  and  3,  1812. 

Art.  18 16.  All  the  acts  and  contracts  of  the  administrating  wife, 
which  she  is  not  forbidden  to  enter  into  by  the  provisions  of  the  preced- 


38o 

ing  article,  shall  be  considered  as  acts  and  contracts  of  the  husband,  and 
shall,  consequently,  bind  the  community  and  the  husband;  excepting 
in  so  far  as  it  shall  appear  or  be  proved  that  said  acts  and  ^contracts 
involved  a  personal  matter  of  the  wife. 

206. 

Art.  181 7.  The  administrating  wife  may  give  in  lease  the  property 
of  the  husband,  and  the  latter  or  his  descendants  shall  be  bound  to 
respect  a  lease  for  a  period  of  time  not  exceeding  the  limits  stated  in  the 
first  paragraph  of  article  18 13. 

This  lease,  nevertheless,  may  last  longer,  if  the  wife  shall  have  been 
specially  authorized  by  the  court  to  extend  it,  after  an  investigation  as 
to  the  utility. 

Art.  i  81 8.  A  wife  who  does  not  wish  to  assume  the  administration 
of  the  conjugal  partnership,  nor  submit  to  the  directions  of  a  curator, 
may  demand  the  separation  of  property;  and  in  such  case  the  provis- 
ions of  Chapter  3,  Title  IX,  Book  First,  shall  be  observed,  the  approval 
of  the  court  being  substituted  for  that  of  the  husband,  in  the  cases  in 
which  the  latter  is  required  therein. 

204  last  par.,  18 14. 

Art.  1 819.  The  cause  for  the  extraordinary  administration  referred 
to  in  the  preceding  articles  having  ceased,  the  husband  shall  recover  his 
administrative  powers  by  a  judicial  decree. 

210. 

Chapter  5. 

Of  the  Dissolution  of  the  Conjugal  Partnership  and  Division  of  the  Acquets 

and  Gains. 

Art.  1820.  The  conjugal  partnership  is  dissolved : 

1.  By  the  dissolution  of  the  marriage. 

2.  By  the  presumption  of  the  death  of  one  of  the  spouses,  according 
to  the  provisions  contained  in  the  Title  Of  the  beginning  and  end  of  per- 
sons. 

3.  By  a  decree  of  perpetual  divorce  or  total  separation  of  property; 
if  the  separation  be  partial,  the  community  shall  continue  with  regard  to 
the  property  not  comprised  therein. 

4.  By  the  declaration  of  the  nullity  of  the  marriage. 

152,  99,  162,  203,  212,  204,  149,  150. 


3*1 

Art.  i 82  i.  The  partnership  having  been  dissolved,  an  inventory  and 
appraisal  of  all  the  property  that  it  enjoyed  the  usufruct  of  or  for  which 
it  was  responsible  shall  immediately  be  made,  within  the  term  and  in  the 
form  prescribed  for  successions  mortis  causa. 

1310,  1312. 

Art.  1822.  The  inventory  and  appraisal  which  may  have  been  made 
without  judicial  formalities,  shall  have  no  value  in  court,  except  against 
the  spouse,  the  heirs  or  the  creditors  who  may  have  duly  approved  and 
signed  the  same. 

If  there  should  be  minors  among  the  participants  in  the  acquets  and 
gains,  or  insane  persons  or  others  disqualified  to  administer  their  prop- 
erty, a  formal  inventory  and  appraisal  shall  be  necessary;  and  if  they 
should  be  omitted,  the  person  to  whom  such  omission  may  be  imputable, 
shall  answer  for  the  damages,  and  said  inventory  and  appraisal  shall  be 
legalized  as  soon  as  possible  in  the  proper  form. 

471,  1310,  1312,  1341,  1759. 

Art.  1823.  A  wife  who  shall  not  have  renounced  the  acquets  and  gains 
before  the  marriage  or  after  the  dissolution  of  the  partnership,  shall  be 
understood  to  accept  them  with  the  benefit  of  inventory. 

1775,  66,  1304. 

Art.  1824.  That  of  the  two  spouses  or  his  or  her  heirs,  who  fraudu- 
lently shall  have  concealed  or  removed  a  thing  belonging  to  the  partner- 
ship, shall  lose  his  or  her  portion  in  the  same  thing  and  shall  be  obliged 
to  restore  it  doubled. 

1288,  1313. 

Art.  1825.  All  that  which  the  spouses  may  respectively  owe  to  the 
partnership,  by  way  of  restitution  or  indemnity,  according  to  the  rules 
given  heretofore,  shall  be  fictitiously  added  to  the  community  assets. 

1798,  1800. 

Art.  1826.  Each  spouse  shall  have  the  right  in  person  or  through  his 
or  her  heirs,  to  take  from  the  assets  the  specific  things  or  substances 
belonging  to  him  or  her,  and  the  prices,  balances  and  recompenses  which 
constitute  the  remainder  of  his  or  her  assets. 

The  restitution  of  the  specific  things  and  effects  must  be  made  as  soon 
as  possible  after  the  termination  of  the  inventory  and  appraisement; 
and  the  payment  of  the  remainder  of  the  assets,  within  one  year  from  the 
date  of  such  termination.     The  Judge  or  Prefect  may,  nevertheless, 


382 

extend  or  shorten  this  period  on  the  petition  of  the  persons  interested, 
after  an  investigation  as  to  the  reasons  therefor. 

474,  1361. 

Art.  1827.  The  losses  or  deteriorations  occurring  in  said  specific 
things  or  effects,  must  be  borne  by  the  owner,  unless  they  be  due  to  the 
fraud  or  grave  fault  of  the  other  spouse,  in  which  case  the  latter  must 
make  compensation  therefor. 

Nothing  shall  be  due  the  partnership  for  increases  arising  from  natural 
causes  and  independently  of  human  industry. 

1543,  63,  714,  etseq. 

Art.  1828.  The  fruits  hanging  at  the  time  of  the  restitution,  and  all 
those  gathered  after  the  dissolution  of  the  partnership,  shall  belong  to  the 
owner  of  the  respective  specific  things. 

The  fruits  received  from  the  community  property  since  the  dissolution 
of  the  partnership,  accrue  to  the  community  assets. 

714  et  seq.,  713,  840  par.  2,  1543. 

Art.  1829.  The  wife  shall  make  the  deductions  referred  to  in  the  pre- 
ceding articles  before  the  husband;  and  those  consisting  of  money, 
whether  belonging  to  the  wife  or  the  husband,  shall  be  made  from  the 
money  and  movables  of  the  community,  and  subsidiarily  from  the  im- 
movables of  the  same. 

The  wife,  if  the  community  property  should  be  insufficient,  may  make 
the  deductions  due  her  from  the  private  property  of  the  husband,  se- 
lected by  mutual  agreement.  If  there  be  no  agreement,  the  Judge  or 
Prefect  shall  select. 

Art.  1830.  The  foregoing  deductions  having  been  made,  the  balance 
shall  be  divided  by  halves  between  the  spouses. 

Art.  i  83 1.  The  testamentary  bequests  which  the  deceased  spouse 
may  have  made  in  favor  of  the  surviving  spouse,  shall  not  be  imputed 
to  the  half  of  the  acquets  and  gains  of  the  latter,  unless  the  former  shall 
have  expressly  so  ordered;  but  in  such  case  the  surviving  spouse  may 
repudiate  them,  if  he  prefers  to  abide  by  the  result  of  the  partition. 


1234,  *Z35- 

Art.  1832.  The  division  of  the  community  property  shall  be  subject 
the  rules  given  for  the  partition  of  hereditary  property. 


toi6,  1374  et  seq. 


Art.  1 833.  The  wife  is  not  responsible  for  the  debts  of  the  community, 
beyond  the  extent  of  her  half  of  the  acquets  and  gains. 


383 

But,  in  order  to  enjoy  this  benefit,  she  must  prove  the  excess  of  the 
contribution  required  of  her,  over  her  half  of  the  acquets  and  gains, 
either  by  the  inventory  and  appraisal,  or  by  other  authentic  documents. 

1238,  1806  par.  2,  1807,  1304,  1758. 

Art.  1 834.-  The  husband  is  liable  for  the  total  debts  of  the  community ; 
reserving  his  action  against  the  wife  for  the  recovery  of  one-half  of  these 
debts,  according  to  the  preceding  article. 

1806. 

Art.  1835.  That  of  the  spouses  who,  by  virtue  of  a  mortgage  or  pledge 
constituted  upon  a  specific  thing  which  has  fallen  to  him  or  her  in  the 
division  of  the  community  assets,  pays  a  community  debt,  shall  have  a 
right  of  action  against  the  other  spouse  for  the  recovery  of  one-half  the 
amount  paid ;  and  if  he  or  she  pay  a  debt  of  the  other  spouse,  he  or  she 
shall  have  a  right  of  action  against  such  spouse  for  the  recovery  of  the 
entire  amount  paid. 

Art.  1856.  The  heirs  of  each  spouse  enjoy  the  same  rights  and  are 
subject  to  the  same  actions  as  the  spouse  they  represent. 

1155,  1580,  1411. 

Chapter  6. 

Of  the  Renunciation  of  the  Acquets  and  Gains,  made  on  the  Part  of  the  Wife, 
after  the  Dissolution  of  the  Partnership. 

Art.  1837.  The  community  having  been  dissolved,  the  wife  who  is  of 
age  or  her  heirs  who  are  of  age,  shall  have  the  power  to  renounce  the 
acquets  and  gains  to  which  they  may  be  entitled. 

This  renunciation  is  not  permitted  to  a  wife  under  age,  nor  to  her  heirs 
under  age,  without  judicial  approval. 

1775,  1777. 

Art.  1838.  The  wife  may  make  the  renunciation  as  long  as  no  part  of 
the  community  assets  shall  have  come  into  her  possession  as  acquets 
and  gains. 

The  renunciation  having  been  made,  it  cannot  be  rescinded,  unless  it 
be  proved  that  the  wife  or  her  heirs  have  been  induced  to  renounce  by 
deceit  or  a  justifiable  error  as  to  the  real  state  of  the  affairs  of  the  com- 
munity. 

This  rescissory  action  shall  prescribe  in  four  years  from  the  date  of  the 
dissolution/^  the  community. 

1287,  1299,  1300,  1292,  1291,  1294,  1509,  1750. 


3»4 

Art.  1839.  The  wife  or  her  heirs  having  made  the  renunciation,  the 
rights  of  the  community  and  of  the  husband  are  confounded  and  identi- 
fied, even  with  regard  to  her. 

1806. 

Art.  1840.  A  wife  making  a  renunciation,  reserves  the  rights  and 
obligations  as  to  the  reimbursements  and  indemnities  above  mentioned. 

1798. 

Art.  i  84  i.  If  only  a  portion  of  the  heirs  of  the  wife  renounce,  the 
shares  of  those  renouncing  accrue  to  the  share  of  the  husband. 

1206. 

Chapter  7. 

Of  the  Dowry  and  of  Donations  by  Reason  of  Marriage* 

Art.  1842.  The  donations  which  one  spouse  makes  to  the  other  before 
the  celebration  of  the  marriage  and  in  consideration  thereof,  and  the 
donations  which  a  third  person  makes  to  either  of  the  spouses  before  or 
after  the  celebration  of  the  marriage,  and  in  consideration  thereof,  are 
called  in  general  donations  by  reason  of  marriage. 

1463,  1782,  1788. 

Art.  1843.  The  promises  which  one  spouse  makes  to  the  other  before 
the  celebration  of  the  marriage  and  in  consideration  thereof,  or  which  a 
third  person  makes  to  one  of  the  spouses  in  consideration  of  the  marriage, 
shall  be  subject  to  the  same  rules  as  present  donations,  but  they  must 
appear  in  a  public  instrument,  or  by  the  confession  of  the  third  person. 

1457*  1463.  r76o,  1769. 

Art.  1844.  Neither  of  the  spouses  can  make  a  donation  to  the  other 
by  reason  of  marriage,  beyond  the  value  of  one-quarter  of  the  property 
which  he  brings  to  the  marriage. 

i77i,  H58,  1463. 

Art.  1845.  The  donations  by  reason  of  marriage,  whether  classified 
as  dowry,  arras,  or  under  any  other  denomination,  are  susceptible  of 
terms,  conditions  and  any  other  licit  stipulations,  and  are  subject  to  the 
general  rules  governing  donations,  in  all  that  is  not  opposed  to  the  special 
provisions  contained  in  this  Title. 


*  See  La.  Civil  Code,  arts.  2336  [2316],  2337  [2317]  et  seq. 


3«5 

In  all  of  them  the  condition  of  the  marriage  taking  place  or  having 
taken  place  is  presumed. 

1473,  1485,  66,  112,  150,  1546. 

Art.  1846.  The  nullity  of  the  marriage  having  been  declared,  all  the 
donations  which  may  have  been  made  by  reason  of  the  said  marriage  to 
the  person  who  contracted  it  in  bad  faith,  may  be  revoked,  provided 
that  evidence  of  the  donation  and  its  consideration  appear  in  a  public 
instrument. 

In  the  instrument  of  the  donating  spouse,  the  consideration  of  mar- 
riage is  always  presumed,  even  though  not  expressed. 

The  putative  spouse  who  also  contracted  in  bad  faith,  shall  not  enjoy 
this  right  of  action  for  revocation. 

112,  164,  1488,  1463,  1548,  1760,  66,  1546,  150,  1473,  1485. 

Art.  1847.  In  donations  inter  vivos  or  testamentary  assignments  by 
reason  of  marriage,  there  shall  not  be  understood  the  resolutory  con- 
dition of  the  absence  of  the  donee  or  assign  without  leaving  succession, 
nor  any  other  condition  which  is  not  expressed  in  the  respective  instru- 
ment, or  which  the  law  does  not  prescribe. 

*457,  1760. 

Art.  1848.  If  by  the  act  of  one  of  the  spouses  the  marriage  should  be 
dissolved  before  being  consummated,  the  donations  which  may  have 
been  made  to  such  spouse  by  reason  of  marriage  may  be  revoked 
according  to  the  terms  of  article  1 846. 

The  spouse  by  whose  act  the  marriage  may  be  dissolved,  shall  not 
have  this  right  of  action  for  revocation. 

164. 


386 

TITLE  XXIII. 

Of  Purchase  and  Sale. 

Art.  1849.  A  purchase  and  sale  is  a  contract  in  which  one  of  the  par- 
ties binds  himself  to  give  a  thing  and  the  other  to  pay  for  it  in  money. 
The  former  is  said  to  sell  and  the  latter  to  purchase.  The  money  which 
the  purchaser  gives  for  the  thing  sold  is  called  the  price. 

2053- 

Art.  1 850.  When  the  price  consists  part  in  money  and  part  in  some- 
thing else,  it  shall  be  considered  an  exchange  if  the  thing  is  worth  more 
than  the  money;  and  a  sale  otherwise. 

1955,  1958. 

Chapter  i. 

Of  Capacity  for  the  Contract  of  Sale. 

Art.  1 85 1.  All  persons  that  the  law  does  not  declare  incapable  of 
celebrating  a  contract  of  sale  or  any  contract  whatsoever,  are  capable 
of  celebrating  it. 

1504. 

Art.  1852.  A  contract  of  sale  between  spouses  not  divorced,  and  be- 
tween a  father  and  son  of  a  family,  is  null. 

1 196,  162,  288  par.  2.     53  par.  3  of  law  153  of  1887. 

Art.  1853.  The  administrators  of  public  establishments  are  forbidden 
to  sell  any  part  of  the  property  they  administer,  the  alienation  of  which 
is  not  comprised  in  their  ordinary  administrative  powers ;  excepting  in 
a  case  of  express  authorization  from  the  competent  authority. 

640. 

Art.  1854.  A  public  employee  is  forbidden  to  purchase  the  public  or 
private  property  which  is  sold  through  his  intervention ;  and  Justices  of 
the  Supreme  Court,  Judges,  Prefects  and  the  Secretaries  of  any  of  them, 
are  forbidden  to  purchase  property  in  the  litigation  over  which  they  may 
have  taken  part,  and  which  is  sold  as  a  consequence  of  the  litigation, 
even  though  the  sale  be  made  at  public  auction. 

From  this  provision  is  excepted  the  employee  with  coercive  jurisdic- 
tion who,  taking  cognizance  of  an  execution  and  having,  consequently, 


3«7 

the  double  character  of  Judge  or  of  Prefect  and  creditor,  should  make 
bids  for  the  things  offered  at  auction,  in  his  character  of  creditor,  which 
circumstance  must  be  clearly  expressed. 

1969,  2170,  2 1 71. 

Art.  1855.  It  is  not  licit  for  tutors  or  curators  to  purchase  any  part 
whatsoever  of  the  property  of  their  wards,  excepting  in  accordance  with 
the  provisions  contained  in  the  Title  Of  the  Administration  of  Tutors  and 
Curators. 

501. 

Art.  1856.  Agents,  syndics  in  insolvency  proceedings,  and  executors, 
are  subject  with  regard  to  the  purchase  and  sale  of  the  things  passing 
through  their  hands  by  virtue  of  these  offices,  to  the  provisions  contained 
in  article  2 1 70. 

i35i- 

Chapter  2. 
Form  and  Requisites  of  a  Contract  of  Sale. 

Art.  1857.  The  sale  is  deemed  perfect  from  the  time  the  parties 
thereto  have  agreed  on  the  things  and  the  price,  with  the  following 
exceptions : 

The  sale  of  real  property  and  servitudes  and  that  of  a  hereditary  suc- 
cession, shall  not  be  considered  perfect  before  the  law,  until  they  shall 
have  been  embodied  in  a  public  instrument. 

The  hanging  fruits  and  flowers,  trees  the  wood  of  which  is  sold,  the 
material  of  a  building  about  to  be  torn  down,  substances  which  naturally 
adhere  to  the  soil,  such  as  stones  and  mineral  substances  of  all  kinds, 
are  not  subject  to  this  exception. 

750,  1956,  1967,  749,  1457,  1760,  659. 

Art.  1858.  If  the  contracting  parties  should  stipulate  that  the  sale  of 
other  things  than  those  enumerated  in  the  second  paragraph  of  the  pre- 
ceding article,  should  not  be  considered  perfect  until  the  execution  of  a 
public  or  private  instrument,  either  of  the  parties  may  retract  before 
the  execution  of  the  instrument  or  before  the  delivery  of  the  thing  sold 
shall  have  begun. 

1979,  1602. 

Art.  1859.  If  a  thing  be  sold  with  an  earnest,  that  is,  by  giving  some- 
thing as  a  pledge  for  the  celebration  or  execution  of  the  contract,  it  shall 
be  understood  that  either  of  the  contracting  parties  may  retract:  he 


388 

who  has  given  the  earnest  by  losing  the  same,  and  he  who  received  it,  by 
restoring  it  doubled. 

66. 

Art.  i  860.  If  the  contracting  parties  shall  not  have  fixed  a  term 
within  which  they  may  retract,  losing  the  earnest,  the  retraction  cannot 
take  place  after  the  two  months  next  following  the  agreement,  nor  after 
the  execution  of  the  public  instrument  or  the  beginning  of  the  delivery. 

Art.  1 86 1.  If  earnest  be  given  expressly  as  part  of  the  price,  or  as  an 
indication  that  the  contracting  parties  have  agreed,  the  sale  shall  be 
perfect,  without  prejudice  to  the  provisions  of  article  1857,  paragraph  2. 

If  none  of  these  statements  should  appear  in  writing,  it  shall  be  pre- 
sumed of  right  that  the  contracting  parties  reserve  the  power  to  retract 
according  to  the  two  preceding  articles. 

66  par.  4. 

Art.  1862.  The  cost  of  the  bill  of  sale  shall  be  divided  between  the 
vendor  and  the  buyer,  unless  the  contracting  parties  shall  agree  other- 
wise. 

1881,  2625  to  2628,  2672. 

Art.  1863.  The  sale  may  be  pure  and  simple,  or  under  a  suspensive 
or  resolutory  condition. 

It  may  be  made  subject  to  time  for  the  delivery  of  the  things  or  of 
the  price. 

Its  object  may  be  two  or  more  alternative  things. 

Under  all  these  respects  it  is  governed  by  the  general  rules  of  con- 
tracts, in  so  far  as  not  modified  by  those  of  this  Title. 

Chapter  3. 
Of  the  Price. 

Art.  1864.  The  price  of  the  sale  must  be  determined  by  the  contract- 
ing parties. 

This  determination  may  be  made  by  any  means  or  indications  which 
fix  it. 

If  fungible  things  are  involved  and  are  sold  at  the  market  price,  the 
*  price  of  the  day  of  delivery  shall  be  understood,  unless  otherwise  stipu- 
lated. 

1850,  1 5 18  par.  2,  1883  pars.  3  and  4,  1929,  2054. 

Art.  1865.  The  price  may  likewise  be  left  to  the  decision  of  a  third 
person ;  and  if  the  third  person  should  not  determine  it,  any  other  per- 


3«9 

son  agreed  upon  by  the  contracting  parties  may  do  so  for  him :  in  the 
event  of  a  disagreement,  there  shall  be  no  sale. 

The  price  cannot  be  left  to  the  decision  of  one  of  the  contracting 
parties. 

2055,  1526,  1535,  2093  par.  1. 


Chapter  4. 

Of  the  Thing  Sold. 

Art.  1866.  All  corporeal  or  incorporeal  things,  the  alienation  of  which 
is  not  forbidden  by  law,  may  be  sold. 

1520,  1518. 

Art.  1867.  A  sale  of  all  present  or  future  property,  or  of  both, 
whether  the  total  or  a  part  be  sold,  is  null ;  but  the  sale  of  all  the  specific 
or  generic  things  and  amounts  designated  by  a  public  instrument  shall 
be  valid,  even  though  it  extend  to  all  that  the  vendor  possesses  or  ex- 
pects to  acquire,  provided  that  it  does  not  comprise  illicit  objects. 

The  things  not  comprised  in  this  designation,  shall  be  understood  as 
not  included  in  the  sale ;  any  stipulation  to  the  contrary  is  null. 

1464,  1465,  1466,  2082,  66  par.  4,  6  par.  2,  15. 

Art.  1868.  If  the  thing  be  owned  in  common  by  two  or  more  persons 
pro  indiviso,  between  whom  there  is  no  partnership  contract,  each  of 
them  may  sell  his  share,  even  without  the  consent  of  the  other. 

21 14,  1401,  2442. 

Art.  1869.  The  sale  of  things  which  do  not  exist,  but  are  expected  to 
exist,  shall  be  understood  as  made  under  the  condition  of  their  existing, 
unless  the  contrary  shall  be  stated  or  unless  from  the  nature  of  the  con- 
tract it  shall  appear  that  the  chance  was  purchased. 

1967,  1969,  1498,  2464. 

Art.  1870.  The  sale  of  a  thing  which  was  supposed  to  exist  and  did  not 
exist  at  the  time  of  the  perfection  of  the  contract,  does  not  produce  any 
effect  whatsoever. 

If  a  considerable  portion  thereof  were  lacking  at  the  time  of  the  per- 
fection of  the  contract,  the  purchaser  may,  at  his  option,  withdraw  from 
the  contract,  or  consider  it  as  subsisting,  upon  paying  the  price  accord 
ing  to  a  fair  estimate. 


39o 

He  who  knowingly  sold  something  that  did  not  exist  in  whole  or  in  a 
considerable  part,  shall  reimburse  a  purchaser  in  good  faith  for  any 
damages. 

1965,  1884,  2475,  1613. 

Art.  187 1.  The  sale  of  a  thing  belonging  to  another  is  valid,  without 
prejudice  to  the  rights  of  the  owner  of  the  thing  sold,  as  long  as  they  are 
not  extinguished  by  the  lapse  of  time. 

791,  752,  1401  par.  2,  1633,  2320,  1874. 

Art.  1872.  The  purchase  of  one's  own  thing  is  not  valid;  the  pur- 
chaser shall  have  the  right  to  recover  what  he  may  have  given  therefor. 

The  natural  fruits,  hanging  at  the  time  of  the  sale,  and  all  fruits,  both 
natural  and  civil,  which  the  thing  may  produce  thereafter,  shall  belong 
to  the  purchaser,  unless  the  delivery  of  the  thing  after  a  certain  period  or 
in  the  event  of  a  certain  condition,  should  have  been  stipulated ;  as  in 
such  case  the  fruits  shall  not  belong  to  the  purchaser,  until  after  the  ex- 
piration of  the  period,  or  the  fulfillment  of  the  condition. 

All  that  has  been  stated  in  this  article,  may  be  modified  by  express 
stipulations  of  the  contracting  parties. 

2313,  7H  et  seq.,  1602. 


Chapter  5. 

Of  the  Immediate  Effects  of  a  Contract  of  Sale. 

Art.  1873.  If  a  person  sells  separately  the  same  thing  to  two  persons, 
the  purchaser  who  may  have  entered  in  possession  shall  be  preferred  to 
the  other ;  if  he  has  made  the  delivery  to  the  two,  the  person  to  whom  first 
made  shall  be  preferred ;  and  if  it  has  not  been  delivered  to  either,  the 
oldest  title  shall  prevail. 

740,  754,  756,  2499  par.  3. 

Art.  1874.  The  sale  of  a  thing  belonging  to  another,  subsequently 
ratified  by  the  owner,  confers  upon  the  purchaser  the  rights  of  such  from 
the  date  of  the  sale. 

767,  955,  742,  756,  2437,  1871. 

Art.  1875.  If  a  thing  belonging  to  another  shall  have  been  sold  and 
delivered,  and  the  vendor  subsequently  acquires  the  ownership  thereof, 
the  purchaser  shall  be  considered  as  the  true  owner  from  the  date  of  the 
tradition. 


391 

Consequently,  if  the  vendor  should  sell  it  to  another  person  after  hav- 
ing acquired  the  ownership,  the  ownership  thereof  shall  subsist  in  the 
first  purchaser. 

See  citations  to  preceding  article. 

Art.  1876.  The  loss,  deterioration  or  improvement  of  the  specific 
thing  or  certain  object  sold,  is  the  purchaser's  from  the  moment  the  con- 
tract is  perfected,  even  though  the  thing  shall  not  have  been  delivered ; 
unless  it  be  sold  under  a  suspensive  condition  and  the  condition  be  ful- 
filled, as  then,  if  the  thing  is  totally  destroyed  while  the  condition  is  pend- 
ing, the  loss  shall  be  that  of  the  vendor,  and  the  improvement  or  deteri- 
oration shall  be  the  purchaser's. 

1543,  1607,  1729  et  seq.,  2057. 

Art.  1877.  If  a  thing  be  sold  which  is  customarily  sold  by  weight,  by 
tale  or  by -measure,  but  indicated  in  such  manner  that  it  cannot  be  con- 
founded with  another  portion  of  the  same  thing,  as  all  the  wheat  con- 
tained in  a  certain  granary,  the  loss,  deterioriation  or  improvement  shall 
be  at  the  risk  of  the  purchaser,  even  though  said  thing  should  not  have 
been  weighed,  counted  nor  measured,  provided  the  price  shall  have  been 
fixed. 

If  of  things  customarily  sold  by  weight,  by  tale,  or  by  measure,  only 
an  indeterminate  portion  is  sold,  as  ten  hectoliters  of  the  wheat  contained 
in  a  certain  granary,  the  loss,  deterioriation  or  improvement,  shall  not  be 
the  purchaser's,  until  after  the  price  shall  have  been  fixed  and  said 
part  weighed,  counted  or  measured. 

754,  1729  et  seq. 

Art.  1878.  If  the  vendor  and  the  purchaser  having  agreed  as  to  the 
price,  should  fix  a  day  for  the  weighing,  counting  or  measuring,  and  one 
or  the  other  should  not  appear  thereon,  such  person  shall  be  obliged  to 
compensate  the  other  for  all  damages  resulting  from  his  neglect ;  and  the 
vendor  or  purchaser  who  did  not  fail  to  keep  the  engagement,  may,  if  it 
suit  him,  withdraw  from  the  contract. 

1546. 

Art.  1879.  If  it  be  stipulated  that  the  sale  is  subject  to  trial,  there 
shall  be  understood  to  be  no  contract  as  long  as  the  purchaser  does  not 
declare  that  he  is  satisfied  with  the  thing  in  question,  and  any  loss,  de- 
terioration or  improvement  shall  be  the  vendor's  in  the  meantime. 

A  sale  shall  be  understood  as  made  subject  to  trial  with  regard  to  all 
things  customarily  sold  in  this  manner,  without  the  necessity  of  an  ex- 
press stipulation. 

66. 


392 

Chapter  6. 
Of  the  Obligations  of  the  Vendor  and  Especially  of  the  Obligation  to  Deliver. 

Art.  i  880.  The  obligations  of  the  vendor  are  reduced  in  general  to  two, 
the  delivery  or  tradition,  and  the  warranty  of  the  thing  sold. 

The  traditions  shall  be  subject  to  the  rules  given  in  Title  VI  of  Book 
II. 

1605. 

Art.  1 88 1.  The  vendor  shall  naturally  bear  the  cost  of  making  the 
thing  ready  for  delivery,  and  the  purchaser  that  incurred  for  its  trans- 
portation after  the  delivery. 

1862,  1982. 

Art.  1882.  The  vendor  is  obliged  to  deliver  the  thing  sold  immediately 
after  the  contract,  or  at  the  time  fixed  therein. 

If  the  vendor,  through  his  own  act  or  fault,  should  have  delayed  the 
delivery,  the  purchaser  may,  at  his  option,  persevere  in  the  contract,  or 
withdraw  therefrom,  and  in  either  case  he  shall  be  entitled  to  damages 
according  to  the  general  rules. 

All  of  which  is  understood  if  the  purchaser  has  paid  the  price  or  is 
ready  to  pay  the  full  price  or  has  agreed  to  pay  at  a  future  date. 

But  if  after  the  contract  the  fortune  of  the  purchaser  should  have 
diminished  considerably,  so  that  the  vendor  is  in  imminent  danger  of 
losing  the  pi  ice,  the  delivery  cannot  be  demanded  even  though  a  term 
for  the  payment  of  the  price  shall  have  been  stipulated,  unless  the  price 
be  paid  or  the  payment  secured. 

1864,  1929,  1608,  1609,  1610,  1546  par.  2,  1983,  2059,  1613,  1553, 
2374  No.  2,  1929  par.  2. 

Art.  1883.  If  the  purchaser  is  in  default  in  receiving,  he  shall  pay  the 
vendor  the  storage  charges,  or  the  rental  of  the  granaries  or  vessels  con- 
taining the  things  sold,  and  the  vendor  shall  be  relieved  from  ordinary 
care  to  preserve  the  thing,  and  shall  only  be  liable  for  fraud  or  grave  fault. 

63. 

Art.  1884.  The  vendor  is  obliged  to  deliver  what  the  contract  recites. 

1605,  1870. 

Art.  1 885.  The  sale  of  a  cow,  mare  or  other  female,  naturally  includes 
that  of  the  issue  which  she  carries  in  the  womb  or  which  she  suckles; 
but  not  of  that  which  can  graze  and  feed  itself. 


393 

Art.  1886.  In  the  sale  of  an  estate  are  naturally  included  all  the 
accessories  which,  according  to  articles  658  et  seq.  are  considered  immov- 
ables. 

Art.  1887.  A  rural  estate  may  be  sold  with  relation  to  its  area,  or  as 
a  specific  or  certain  thing. 

It  is  sold  with  relation  to  its  area,  whenever  such  area  is  stated  in  any 
manner  in  the  contract,  unless  the  parties  shall  declare  that  there  shall 
be  no  difference  in  the  price,  even  though  the  actual  area  be  greater  or  less 
than  the  area  stated  in  the  contract. 

It  is  indifferent  whether  a  total  price  be  fixed  directly  or  the  price  be 
deduced  from  the  area  or  number  of  measures  expressed,  and  from  the 
price  of  each  measure. 

It  is  also  indifferent  whether  a  total  area  be  expressed  or  the  areas  of 
the  various  portions  of  different  qualities  and  prices  which  the  estate  may 
contain,  provided  that  the  total  price  and  the  total  area  appear  from 
this  data. 

The  same  applies  to  the  alienation  of  two  or  more  estates  by.  one  sale. 
In  all  other  cases  the  estate  or  estates  shall  be  understood  sold  as  a  deter- 
minate object. 

2036,  66.  # 

Art.  1888.  If  the  estate  be  sold  with  relation  to  its  area,  and  the 
actual  area  be  greater  than  the  area  declared,  the  purchaser  must  increase 
the  price  in  proportion;  unless  the  price  of  the  overplus  area  exceeds 
one-tenth  the  price  of  the  actual  area ;  as  in  such  case  the  purchaser  may, 
at  his  option,  either  increase  the  price  in  proportion,  or  recede  from  the 
contract ;  and  if  he  recede,  he  shall  be  entitled  to  damages  according  to 
the  general  rules. 

And  if  the  real  area  be  less  than  the  declared  area,  the  vendor  must 
supplement  it;  and  if  this  should  not  be  possible  or  not  demanded  of 
him,  he  must  suffer  a  proportionate  reduction  in  the  price;  but  if  the 
price  of  the  area  lacking  exceeds  one-tenth  of  the  price  of  the  full  area, 
the  purchaser  may,  at  his  option,  accept  the  reduction  in  price,  or  recede 
from  the  contract  according  to  the  terms  of  the  preceding  paragraph. 

2036,  1613,  1615. 

Art.  1889.  If  the  estate  be  sold  as  a  determinate  object,  neither  the 
purchaser  nor  the  vendor  shall  have  any  right  to  demand  a  reduction  or 
increase  of  the  price,  whatever  be  the  area  of  the  estate. 

Nevertheless,  if  it  be  sold  with  an  indication  of  the  boundaries,  the 
vendor  shall  be  obliged  to  deliver  all  that  is  comprised  between  the  same, 
and  if  he  should  not  be  able  to  do  so  or  it  should  not  be  required  of  him, 
the  provisions  of  the  paragraph  of  the  preceding  article  shall  be  observed. 

2036. 


394 

Art.  1890.  The  actions  granted  in  the  two  preceding  articles  expire 
at  the  end  of  one  year  counted  from  the  date  of  delivery. 

Art.  1 89 1.  The  rules  given  in  the  articles  referred  to,  apply  to  any  lot 
of  effects  or  merchandise. 

Art.  1892.  In  addition  to  the  actions  granted  in  the  said  articles,  the 
contracting  parties  have  one  for  lesion  beyond  moiety  in  a  proper  case. 

1946. 

Chapter  7. 

Of  the  Obligation  of  Warranty  and  Primarily  of  Warranty  in  Case  of 

Eviction* 

Art.  1893.  The  obligation  of  warranty  comprises  two  objects:  to  pro- 
tect the  purchaser  in  the  ownership  and  pacific  possession  of  the  thing 
sold,  and  answer  for  the  concealed  defects  of  the  latter,  called  redhibitory 
vices. 

1479,  1480,  21 1 1,  1982  No.  2. 

Art.  1894.  There  is  eviction  of  anything  purchased  when  the  pur- 
chaser is  deprived  of  all  or  of  a  part  thereof,  by  a  judicial  decision. 

Art.  1895.  The  vendor  is  obliged  to  warrant  the  purchaser  against 
any  eviction  for  a  cause  prior  to  the  sale,  unless  the  contrary  shall  have 
been  stipulated. 

957  last  par.,  1403  Nos.  2  and  3,  1909. 

Art.  1 896.  The  action  of  warranty  is  indivisible.  It  may,  therefore, 
be  brought  in  solidum  against  any  of  the  heirs  of  the  vendor.  But  when 
the  obligation  to  protect  the  purchaser  in  possession,  is  followed  by  that 
of  indemnifying  him  in  money,  the  action  is  divided;  and  each 
heir  is  liable  only  in  proportion  to  his  hereditary  quota.  The  same  rule 
applies  to  vendors  who  have  alienated  the  thing  by  one  bill  of  sale. 

1 581,  1584,  1585,  1568  par.  2,  1587,  1590,  141 1. 

Art.  1897.  A  person  who  is  sued  for  a  thing  purchased,  may  bring 
against  the  third  person  from  whom  his  vendor  may  have  acquired  it, 
the  action  of  warranty  which  the  vendor  would  have  against  said  person, 
if  the  vendor  had  remained  in  possession  of  the  thing. 

Art.  1898.  Any  agreement  exonerating  the  vendor  from  warranty  in 
case  of  eviction  is  null,  if  there  has  been  bad  faith  on  his  part  in  said 
agreement. 

1403  No.  2,  1909,  19 1 6. 

*  See  La.  Civil  Code,  arts.  2500  [2476]  et  seq. 


395 

Art.  1899.  The  purchaser  who  is  sued  for  the  thing  sold  for  a  cause 
prior  to  the  sale,  must  summon  the  vendor  to  appear  to  defend  him. 

This  summons  shall  be  made  within  the  term  fixed  by  the  laws  of 
procedure. 

If  the  purchaser  should  omit  to  summon  him,  and  the  eviction  as  to 
the  thing  should  take  place,  the  vendor  shall  not  be  obligated  to  the 
warranty ;  and  if  the  vendor  cited  should  not  appear  to  defend  the  thing 
sold,  he  shall  be  liable  for  the  eviction ;  unless  the  purchaser  shall  have 
failed  to  make  any  defense  or  oppose  any  exception  himself,  and  the 
eviction  should  have  taken  place  on  this  account. 

i893. 

Art.  1990.  The  provisions  of  the  preceding  and  following  articles, 
apply  also  to  a  purchaser  who,  in  order  to  protect  the  thing  purchased 
against  execution  or  insolvency  proceedings  against  a  third  person,  or  to 
recover  possession  of  the  thing  itself,  when  he  shall  have  lost  it  without 
his  fault,  is  obliged  to  appear  as  plaintiff  in  the  respective  suit. 

1893- 

Art.  1 90 1.  If  the  vendor  shall  appear,  the  suit  shall  be  continued 
against  him  only;  but  the  purchaser  may  always  intervene  in  the  suit 
for  the  preservation  of  his  rights. 

Art.  1902.  If  the  vendor  shall  not  institute  any  defense,  and  agrees 
to  the  warranty,  the  purchaser  may,  nevertheless,  himself  conduct  the 
defense;  and  if  he  be  defeated,  he  shall  not  have  the  right  to  demand  of 
the  vendor  the  reimbursement  of  the  costs  of  the  defense,  nor  that  of  the 
fruits  received  during  said  defense  and  given  to  the  owner. 

Art.  1903.  The  obligation  to  warrant  shall  cease  in  the  following 
cases : 

1.  If  the  purchaser  and  the  person  suing  for  the  thing  as  his  own  sub- 
mit to  the  judgment  of  arbitrators,  without  the  consent  of  the  vendor, 
and  the  arbitrators  shall  decide  against  the  purchaser. 

2.  If  the  purchaser  shall  have  lost  the  possession  through  his  fault, 
giving  rise  to  the  eviction. 

957  last  par.,  191 2. 

Art.  1904.  Warranty  against  eviction,  which  the  vendor  is  obliged 
to  give,  comprises : 

1.  The  restitution  of  the  price,  even  though  the  thing  should  be  less 
valuable  at  the  time  of  the  eviction. 

2.  That  of  the  legal  costs  of  the  bill  of  sale  which  may  have  been  paid 
by  the  purchaser. 

3.  That  of  the  value  of  the  fruits  which  the  purchaser  may  have  been 
obliged  to  restore  to  the  owner;  without  prejudice  to  the  provisions  of 
article  1902. 


396 

4.  That  of  the  costs  which  the  purchaser  may  have  defrayed  as  a 
consequence  of  the  suit  and  as  the  effect  thereof,  without  prejudice  to 
the  provisions  of  the  said  article. 

5.  The  increase  in  value  which  the  thing  the  subject  of  the  eviction 
may  have  received  in  the  possession  of  the  purchaser,  even  through 
natural  causes,  or  by  the  mere  lapse  of  time. 

All  with  the  following  limitations : 

Art.  1905.  If  the  lower  value  of  the  thing  should  be  due  to  deteriora- 
tion from  which  the  purchaser  may  have  profited,  the  proper  discount 
shall  be  made  in  the  restitution  of  the  price. 

Art.  1906.  The  vendor  shall  be  obliged  to  reimburse  the  purchaser 
for  the  increased  value  arising  from  the  necessary  or  useful  improve- 
ments made  by  the  purchaser,  excepting  in  so  far  as  the  person  who 
obtained  the  eviction  may  have  been  adjudged  to  pay  the  same. 

A  vendor  in  bad  faith  shall  be  obliged  to  reimburse  even  the  value  of 
the  improvements  of  luxury. 

Art.  1907.  The  increase  in  value  due  to  natural  causes  or  to  time, 
shall  not  be  allowed  in  so  far  as  it  exceeds  one-fourth  the  sale  price; 
unless  bad  faith  on  the  part  of  the  vendor  be  proved,  in  which  case  he 
shall  be  obliged  to  pay  the  entire  increase  in  value,  to  whatsoever  cause 
it  may  be  due. 

Art.  1908.  In  forced  sales,  made  by  the  authority  of  the  court,  the 
vendor  is  not  bound,  by  reason  of  the  eviction  which  the  thing  sold  may 
suffer,  but  to  restore  the  price  which  the  sale  may  have  brought. 

1922,  1924. 

Art.  1909.  A  stipulation  exempting  the  vendor  from  the  obligation 
of  warranty  in  case  of  eviction,  does  not  exempt  him  from  the  obligation 
of  returning  the  price  received. 

And  he  shall  be  obliged  to  return  the  full  price,  even  though  the  thing 
may  have  deteriorated  or  its  value  diminished  in  any  manner  whatso- 
ever, even  through  any  act  or  the  negligence  of  the  purchaser,  excepting 
in  so  far  as  the  latter  may  have  profited  from  the  deterioration. 

The  obligation  to  return  the  price  shall  cease  if  he  who  purchased  it 
did  so  knowing  that  the  thing  belonged  to  another,  or  if  he  expressly 
assumed  the  danger  of  the  eviction  and  so  stated. 

If  the  eviction  does  not  involve  the  entire  thing  sold,  and  the  part 
subject  to  the  eviction  is  such  that  it  is  to  be  presumed  that  the  thing 
would  not  have  been  purchased  without  it,  the  rescission  of  the  sale  may 
be  demanded. 

1403  No.  2,  1492,  1992,  1921. 

Art.  1 9 10.  By  virtue  of  this  rescission,  the  purchaser  shall  be  obliged 
to  restore  to  the  vendor  the  part  not  subject  to  the  eviction,  and  in  this 


397 

restitution  he  shall  be  considered  as  a  possessor  in  good  faith,  unless 
there  be  proof  to  the  contrary ;  and  the  vendor,  in  addition  to  returning 
the  price,  shall  pay  the  value  of  the  fruits  which  the  purchaser  may  have 
been  obliged  to  restore  with  the  part  subject  to  the  eviction,  and  all  other 
damage  which  the  purchaser  may  have  suffered  through  the  eviction. 

Art.  191  i.  In  the  event  that  the  part  subject  to  the  eviction  should 
not  be  of  so  much  importance,  or  in  case  the  rescission  of  the  sale  be  not 
demanded,  the  purchaser  shall  have  the  right  to  demand  the  warranty 
of  the  partial  eviction,  in  accordance  with  articles  1904  et  seq. 

Art.  1912.  If  the  judicial  decision  should  deny  the  evictionr  the 
vendor  shall  not  be  liable  for  the  damages  which  the  suit  may  have 
caused  the  purchaser,  except  in  so  far  as  the  suit  may  be  imputable  to 
the  act  or  fault  of  the  vendor. 

Art.  19 1 3.  The  action  of  warranty  for  eviction,  prescribes  in  four 
years;  but  in  so  far  as  the  mere  restitution  of  the  price  is  concerned,  it 
prescribes  according  to  the  general  rules. 

The  time  shall  be  counted  from  the  date  of  the  judgment  of  eviction; 
or  if  it  should  not  have  been  rendered,  from  the  time  of  the  restitution 
of  the  thing. 

1402  par.  2,  1750,  2536. 


Chapter  8. 
Of  the  Warranty  Against  Redhibitory  Vices.* 

Art.  19 14.  A  redhibitory  action  is  that  which  the  purchaser  has  for 
the  rescission  of  the  sale  or  a  proportionate  reduction  in  the  price  on 
account  of  the  hidden  vices  of  the  thing  sold,  whether  real  or  personal, 
called  redhibitory  vices. 

Art.  19 1 5.  Redhibitory  vices  are  those  embodying  the  following 
conditions : 

1 .  That  they  existed  at  the  time  of  the  sale. 

2.  That  they  are  such,  that  on  account  of  them  the  thing  sold  does  not 
serve  for  its  natural  use,  or  only  imperfectly,  so  that  it  is  to  be  presumed 
that  if  they  had  been  known  to  the  purchaser  he  would  not  have  pur- 
chased it  or  would  have  purchased  it  at  a  much  lower  price. 

3.  That  the  vendor  did  not  call  attention  to  them,  and  that  they  are 
of  such  character  that  the  purchaser  could  have  ignored  them  without 
grave  negligence  on  his  part,  or  such  that  the  purchaser  could  not  have 
discovered  them  easily  by  reason  of  his  profession  or  trade. 

Art.  19 16.  If  it  shall  have  been  stipulated  that  the  vendor  should 
not  be  obligated  to  warranty  for  the  hidden  vices  of  the  thing,  he  shall 

♦See  La  Civil  Code,  arts.  2520  [2496]  et  seq. 


398 

nevertheless  be  obliged  to  warrant  such  as  he  may  have  had  knowledge 
of  and  of  which  he  did  not  inform  the  purchaser. 

1898,  1924. 

Art.  1 9 1 7.  The  redhibitory  vices  give  the  purchaser  a  right  to  demand 
either  the  rescission  of  the  sale,  or  a  reduction  in  the  price,  as  he  may 
see  fit. 

1546. 

Art.  19.18.  If  the  vendor  knew  of  the  vices  and  did  not  declare  them, 
or  if  the  vices  were  such  that  the  vendor  should  have  known  them  by 
reason  of  his  profession  or  tra.de,  he  shall  be  bound  not  only  to  make 
restitution  or  reduce  the  price,  but  also  to  pay  the  damages ;  but  if  the 
vendor  was  not  aware  of  the  vice,  nor  were  they  such  that  he  should 
have  known  them  by  reason  of  his  profession  or  trade,  he  shall  only  be 
bound  to  make  restitution  or  reduce  the  price. 

1986  par.  3,  1988  pars.  4  and  5,  1991  par.  2,  2033  par  2. 

Art.  19 19.  If  the  vicious  thing  shall  have  been  destroyed  before  the 
contract  of  sale  shall  have  been  perfected,  the  purchaser  shall  not  there- 
by lose  the  right  he  may  have  had  for  a  reduction  in  the  price,  even 
though  the  thing  shall  have  been  destroyed  while  in  his  power  and 
through  his  fault. 

But  if  it  shall  have  perished  through  an  effect  of  the  vice  inherent 
therein,  the  rules  of  the  preceding  article  shall  be  observed. 

i95i- 

Art.  1920.  The  parties  may  by  the  contract  make  vices  redhibitory 
which  naturally  are  not. 

1602. 

Art.  1 92  i.  If  two  or  more  things  should  be  sold  together,  whether  a 
lump  sum  for  all  of  them  or  a  price  for  each  shall  have  been  arranged, 
the  redhibitory  action  shall  only  lie  as  to  the  vicious  thing  and  not  as  to 
all ;  unless  it  shall  appear  that  all  would  not  have  been  bought  without 
this  thing ;  as  when  a  yoke,  team  or  pair  of  animals  is  bought,  or  a  suite 
of  furniture. 

1909  par.  4,  1990  par.  2. 

Art.  1922.  A  redhibitory  action  does  not  lie  in  forced  sales  made  with 
the  authority  of  the  court.  But  if  the  vendor,  when  he  should  not  or 
could  not  ignore  the  vices  of  the  thing  sold,  shall  not  have  declared  them 


399 

at  the  request  of  the  purchaser,  a  redhibitory  action  and  the  recovery  of 
damages  shall  lie. 

1908,  1949. 

Art.  1923.  The  redhibitory  action  shall  last  six  months  with  regard 
to  movables  and  one  year  with  regard  to  real  property,  in  all  cases  in 
which  special  laws  or  the  stipulations  of  the  contracting  parties  shall  not 
have  extended  or  reduced  this  term.  The  time  shall  be  counted  from 
the  actual  delivery. 

Art.  1924.  The  redhibitory  action  having  prescribed,  the  purchaser 
shall  still  retain  his  right  to  demand  the  reduction  of  the  price  and  in- 
demnity for  damages,  according  to  the  preceding  rules. 

1908. 

Art.  1925.  If  the  hidden  vices  are  not  of  the  importance  mentioned  in 
No.  2  of  article  19 15,  the  purchaser  shall  not  be  entitled  to  a  rescission  of 
the  sale,  but  only  to  a  reduction  of  the  price. 

Art.  1926.  The  action  to  demand  the  reduction  in  price,  whether  in 
the  case  of  article  19 15  or  in  that  of  article  1925,  prescribes  in  one  year 
for  movable  property  and  in  eighteen  months  for  real  property. 

Art.  1927.  If  the  purchase  has  been  made  to  forward  the  thing  to  a 
distant  place,  the  action  for  the  reduction  of  the  price  shall  prescribe  in 
one  year  counted  from  the  delivery  to  the  consignee,  in  addition  to  the 
term  of  summons  corresponding  to  the  distance. 

But  it  shall  be  necessary  that  the  purchaser,  in  the  time  intervening 
between  the  sale  and  the  remittance,  could  have  ignored  the  vice  of 
the  thing,  without  negligence  on  his  part. 


Chapter  9. 

Oj  the  Obligations  of  the  Buyer. 

Art.  1 928.  The  principle  obligation  of  the  purchaser  is  to  pay  the  price 
agreed. 

1883. 

Art.  1929.  The  price  must  be  paid  in  the  place  and  at  the  time  stipu- 
lated, or  in  the  place  and  at  the  time  of  delivery,  should  there  be  no 
agreement  to  the  contrary. 

Nevertheless,  if  the  purchaser  should  be  disturbed  in  the  possession 
of  the  thing,  or  shall  prove  that  there  exists  a  real  action  against  the  same 
of  which  the  vendor  did  not  notify  him  before  consummating  the  con- 


4oo 

tract,  he  may  deposit  the  price  with  the  authority  of  the  court,  and  the 
deposit  shall  last  until  the  vendor  shall  cause  the  disturbance  to  cease 
or  gives  surety  for  the  results  of  the  action. 

1864,  1882. 

Art.  1930.  If  the  purchaser  should  be  in  default  in  paying  the  price 
at  the  said  place  and  time,  the  vendor  shall  have  the  right  to  demand  the 
price  or  the  resolution  of  the  sale,  with  recovery  of  damages. 

1546,  1935,  1936,  1617. 

Art.  1 93  i.  A  clause  not  to  transfer  ownership  except  by  virtue  of  the 
payment  of  the  price,  shall  produce  no  other  effect  than  that  of  the 
alternative  demand  mentioned  in  the  preceding  article;  and  upon  the 
purchaser  paying  the  price,  the  alienations  he  may  have  made  of  the 
thing,  or  the  rights  which  he  may  have  constituted  thereon  in  the  inter- 
mediate period,  shall  subsist  in  every  case. 

1546  par.  2,  2022,  1556,  750,  752,  1937. 

Art.  1932.  The  resolution  of  the  sale  for  the  non-payment  of  the  price, 
shall  entitle  the  vendor  to  retain  the  earnest  money,  or  demand  it 
doubled,  and  in  addition  the  restoration  of  the  fruits,  either  in  whole,  if 
no  part  of  the  price  shall  have  been  paid  him,  or  in  the  proportion  corres- 
ponding to  the  part  of  the  price  which  may  not  have  been  paid. 

The  purchaser,  on  the  other  hand,  shall  be  entitled  to  restitution  of 
the  part  of  the  price  he  may  have  paid. 

For  the  allowance  of  the  expenses  to  the  purchaser,  and  the  deteriora- 
tions to  the  vendor,  the  former  shall  be  considered  as  a  possessor  in  bad 
faith,  unless  he  shall  prove  that  he  has  suffered  a  pecuniary  loss,  and, 
without  fault  on  his  part,  so  great  a  reduction  in  his  means  that  it  has  be- 
come impossible  for  him  to  carry  out  his  agreement. 

66,  1768,  63,  1604. 

Art.  1933.  The  resolution  for  the  non-payment  of  the  price,  does  not 
give  the  vendor  any  right  against  third  possessors,  except  in  accordance 
with  articles  1547  and  1548. 

750,  1935,  1940. 

Art.  1934.  If  the  bill  of  sale  should  state  that  the  price  has  been  paid, 
no  proof  whatsoever  thereagainst  shall  be  admitted,  excepting  the  nullity 
or  falsification  of  the  instrument,  and  only  by  virtue  of  this  proof  shall 
any  right  of  action  against  third  possessions  lie. 

1 769  and  citations  to  preceding  article. 


401 

Chapter  io. 

Of  the  Agreement  of  Avoidance. 
(Pacto  Comisorio.) 

Art.  1935.  By  the  agreement  of  avoidance  it  is  expressly  stipulated 
that,  if  the  price  should  not  be  paid  at  the  time  settled,  the  sale  contract 
shall  be  resolved. 

This  stipulation  shall  always  be  understood  in  a  contract  of  sale,  and 
when  expressed,  takes  the  name  of  an  agreement  of  avoidance  (pacto 
comisorio),  and  produces  the  following  effects. 

1546,  1933,  750. 

Art.  1936.  The  vendor  is  not  deprived  by  the  agreement  of  avoidance 
of  the  option  of  actions  granted  him  by  article  1930. 

Art.  1937.  If  it  be  stipulated  that  by  the  non-payment  of  the  price 
at  the  time  agreed  upon,  the  contract  of  sale  is  resolved  ipso  facto,  the 
purchaser  may,  nevertheless,  cause  it  to  subsist,  upon  paying  the  price 
not  later  than  twenty-four  hours  after  the  judicial  notice  of  the  suit. 

1931. 

Art.  1938.  The  agreement  for  avoidance  prescribes  at  the  time  fixed 
.  by  the  parties  if  it  should  not  exceed  four  years,  counted  from  the  date 
of  the  contract. 

After  the  expiration  of  these  four  years,  it  necessarily  prescribes 
whether  a  longer  term  or  no  term  at  all  shall  have  been  stipulated. 

1 943- 

Chapter  ii. 
Of  the  Agreement  of  Redemption* 

Art.  1939.  By  the  agreement  of  redemption  the  vendor  reserves  to 
himself  the  right  to  recover  the  thing  sold,  returning  to  the  purchaser 
the  determinate  sum  which  may  be  stipulated,  or,  in  the  absence  of  such 
stipulation,  the  purchase  price. 

Art.  1940.  The  agreement  of  redemption,  in  its  effects  against  third 
persons,  is  subject  to  the  provisions  of  articles  1547  and  1548. 

1933,  1944  par.  2. 

Art.  i  94 1 .  The  vendor  shall  be  entitled  to  the  return  by  the  purchaser 
of  the  thing  sold  with  its  natural  accessions. 


*  See  La.  Civil  Code,  arts.  2567  [2545]  to  2588  [2566]. 


402 

He  shall  likewise,  be  entitled  to  indemnity  for  the  deterioration  charge 
able  to  the  act  or  fault  of  the  purchaser. 

He  shall  be  bound  for  the  payment  of  the  necessary  expenses,  but  not 
those  invested  in  useful  or  luxurious  improvements  which  may  have  been 
made  without  his  consent. 

1876,  713  et  seq.,  965  et  seq. 

Art.  1942.  The  right  arising  from  the  agreement  of  redemption,  can- 
not be  ceded. 

Art.  1943.  The  time  within  which  an  action  for  redemption  may  be 
instituted,  shall  not  exceed  four  years  from  the  date  of  the  contract. 

But  in  any  case  the  purchaser  shall  have  the  right  to  be  given  notice 
in  advance,  which  shall  not  be  less  than  six  months  for  real  property,  nor 
fifteen  days  for  movables ;  and  if  the  thing  be  a  fructiferous  one  and 
should  not  give  fruits  except  from  time  to  time  and  as  a  result  of  pre- 
paratory work  and  expenditures,  the  restitution  sued  for  cannot  be 
enforced  before  the  next  harvest  of  fruits. 

1939  par.  2. 

Chapter  12. 

Of  Other  Agreements  Accessory  to  the  Contract  of  Sale. 

Art.  1944.  If  it  should  be  agreed  that  upon  the  appearance  within  a 
certain  time  (which  cannot  exceed  one  year)  of  a  person  who  betters  the 
purchase,  the  contract  shall  be  resolved,  the  agreement  shall  be  carried 
out;  unless  the  purchaser,  or  the  person  to  whom  the  latter  may  have 
alienated  the  thing,  is  willing  to  better  the  purchase  in  the  same  terms. 

The  provisions  of  article  1940  apply  to  this  contract. 

The  contract  having  been  resolved,  the  mutual  prestations  shall  take 
place  as  in  the  case  of  an  agreement  of  redemption. 

Art.  1945.  Any  other  licit  accessory  agreements,  which  shall  be  gov- 
erned by  the  general  rules  on  contracts,  may  be  added  to  the  contract  of 
sale. 

Chapter  13. 

Of  the  Rescission  of  the  Sale  on  Account  of  Lesion  Beyond  Moiety. 

Art.  1946.  A  contract  of  purchase  and  sale  may  be  rescinded  no 
account  of  a  lesion  beyond  moiety  (por  lesion  enorme.) 

1892. 

Art.  1947.  The  vendor  suffers  a  lesion  beyond  moiety  when  the  price 
he  receives  is  less  than  one-half  the  just  price  of  the  thing  he  sells ;  and 


403 

the  purchaser  in  his  turn  suffers  such  lesion,  when  the  just  price  of  the 
thing  he  buys  is  less  than  one-half  the  price  he  pays  therefor. 
The  just  price  refers  to  the  time  of  the  contract. 

1 29 1  par.  3,  1405  par.  2,  1601,  2231. 

Art.  1948.  The  purchaser  against  whom  the  rescission  has  been  de- 
clared may,  at  his  option,  consent  thereto,  or  make  up  the  just  price  with 
a  deduction  of  one-tenth ;  and  the  vendor,  in  the  same  case,  may  at  his 
option  consent  to  the  rescission,  or  restore  the  excess  of  the  price  received 
over  the  just  price  with  an  additional  tenth  part  thereof. 

No  interest  or  fruits  shall  be  due  except  from  the  date  of  the  suit,  nor 
can  anything  be  demanded  by  reason  of  the  expenditures  which  the  con- 
tract may  have  occasioned. 

1545,  1746,  964  par.  3. 

Art.  1949.  A  rescissory  action  shall  not  lie  for  a  lesion  beyond  moiety 
in  sales  taking  place  at  a  public  auction.* 

1922. 

Art.  1950.  If  it  should  be  stipulated  that  a  rescissory  action  cannot 
be  brought,  the  stipulation  shall  not  be  valid ;  and  if  the  vendor  should 
express  the  intention  of  donating  the  excess,  the  clause  shall  be  consid- 
ered as  unwritten. 

6  par.  2,  15,  1526,  1522. 

Art.  1 95 1.  If  the  thing  should  be  lost  while  in  the  possession  of  the 
purchaser,  neither  party  shall  be  entitled  to  the  rescission  of  the  contract. 

The  same  shall  be  the  case  if  the  purchaser  shall  have  alienated  the 
thing ;  unless  he  shall  have  sold  it  for  more  than  he  paid  for  it,  as  in  such 
case  the  first  vendor  may  claim  this  excess,  but  only  to  the  extent  of  th*1 
just  value  of  the  thing  with  a  deduction  of  one-tenth. 

1919,  1748. 

Art.  1952.  The  vendor  cannot  demand  anything  by  reason  of  the 
deterioration  which  the  thing  may  have  suffered,  excepting  in  so  far  as 
the  purchaser  may  have  profited  therefrom. 

Art.  1953.  The  purchaser  who  is  required  to  return  the  thing,  must 
first  free  it  of  the  mortgages  or  other  real  rights  which  he  may  have 
constituted  thereon. 

*  This  article  was  repealed  by  art.  45  of  law  57  of  1887,  and  was  replaced  by  art.  32 
of  the  same  law 


404 

Art.  1954.  The  rescissory  action  for  a  lesion  beyond  moiety  expires 
in  four  years  from  the  date  of  the  contract. 

1750,  I938,  1943- 


TITLE  XXIV. 
Of  Exchange. 

Art.  1955.  Exchange  is  a  contract  in  which  the  parties  mutually 
obligate  themselves  to  give  one  specific  or  determinate  thing  for  another. 

1850. 

Art.  1956.  An  exchange  is  considered  perfect  by  the  mere  consent, 
unless  one  of  the  things  exchanged  or  both  should  be  real  property  or 
rights  of  hereditary  succession,  in  which  case,  for  the  perfection  of  the 
contract  before  the  law,  a  public  instrument  shall  be  necessary. 

1857. 

Art.  1957.  Things  which  cannot  be  sold  cannot  be  exchanged. 
Nor  can  persons  not  able  to  enter  into  a  contract  of  sale,  celebrate  a 
contract  of  exchange. 

1866  et  seq.,  1851  et  seq. 

Art.  1958.  The  provisions  regarding  a  purchase  and  sale  apply  to  an 
exchange  in  all  that  is  not  opposed  to  the  nature  of  this  contract ;  each 
exchanger  shall  be  considered  as  the  vendor  of  the  thing  he  gives,  and  the 
just  value  thereof  at  the  date  of  the  contract  shall  be  considered  as  the 
price  which  he  pays  for  what  he  receives  in  exchange. 


405 

TITLE  XXY. 

Ot  the  Cession  ol  Rights. 

Chapter  i. 

Oj  Personal  Credits. 

Art.  1959.  The  cession  of  a  personal  credit,  under  whatsoever  title 
made,  shall  have  no  effect  between  the  assignor  and  the  assignee,  except 
by  virtue  of  the  delivery  of  the  title.* 

1942,  761,  1 185  par.  2,  1634  par.  2,  2414,  1669. 

Art.  i960.  The  cession  does  not  produce  any  effect  against  the  debtor 
or  against  third  persons,  until  notice  thereof  shall  have  been  given  by 
the  assignee  to  the  debtor  or  until  it  shall  have  been  accepted  by  the 
latter. 

2414,  1668  No.  5,  1718. 

Art.  1 961.  The  notice  must  be  served  with  the  production  of  the 
title,  which  shall  bear  a  note  over  the  signature  of  the  assignor  of  the 
transfer  of  the  right  with  a  designation  of  the  assignee. 

33  of  law  57  of  1887. 

Art.  1962.  The  acceptance  shall  consist  of  an  act  which  supposes  it, 
as  the  answer  to  the  suit  of  the  assignee,  a  first  payment  on  account  to 
the  assignee,  etc. 

Art.  1963.  Should  the  aforesaid  notice  or  acceptance  not  take  place, 
the  debtor  may  pay  the  assignor,  or  the  credit  may  be  attached  by 
creditors  of  the  assignor ;  and  in  general,  the  credit  shall  be  considered 
as  existing  in  the  hands  of  the  assignor  with  respect  to  the  debtor  and 
third  persons. 

1718. 

Art.  1964.  The  cession  of  a  credit  includes  its  securities,  privileges 
and  mortgages ;  but  it  does  not  transfer  the  personal  exceptions  of  the 
assignor. 

1670. 

Art.  1965.  He  who  cedes  a  credit  under  an  onerous  title,  makes  him- 
self responsible  for  its  existence  at  the  time  of  the  assignment,  that  is, 

*  This  article  has  been  supplemented  by  article  33  of  law  57  of  1887. 


4o6 

that  it  really  belonged  to  him  at  that  time ;  but  he  does  not  make,  himself 
responsible  for  the  solvency  of  the  debtor,  if  he  does  not  expressly  bind 
himself  therefor;  nor  shall  it  be  understood  in  such  case  that  he  makes 
himself  responsible  for  the  future  solvency,  but  only  for  that  of  the 
present,  unless  the  former  be  expressly  included;  nor  shall  the  respon- 
sibility extend  beyond  the  price  or  remuneration  he  may  have  secured 
by  the  assignment,  unless  expressly  otherwise  agreed. 

1870,  1967. 

Art.  1966.  The  provisions  of  this  title  shall  not  be  applied  to  bills  of 
exchange,  notes  payable  to  order,  registered  bonds,  and  other  negotiable 
paper  which  are  governed  by  the  Code  of  Commerce  or  by  special  laws. 


Chapter  2. 

Of  the  Right  of  Inheritance. 

Art.  1967.  He  who  cedes  under  an  onerous  title  a  right  of  inheritance 
or  a  legacy,  without  specifying  the  effects  of  which  it  consists,  makes 
himself  liable  only  for  his  quality  of  heir  or  legatee. 

1857  par.  2,  1869,  1965. 

Art.  1968.  If  the  heir  should  have  profited  from  the  fruits,  or  received 
credits,  or  sold  hereditary  effects,  he  shall  be  obliged  to  reimburse  the 
assignee  for  their  value. 

The  assignee  on  his  part  shall  be  obliged  to  indemnify  the  assignor  for 
the  necessary  or  reasonable  expenditures  the  assignor  may  have  incurred 
by  reason  of  the  inheritance. 

The  cession  of  a  hereditary  quota  shall  be  understood  to  include  the 
assignment  at  the  same  time  of  the  hereditary  quotas  which  by  the  right 
of  accretion  accrue  thereto,  unless  otherwise  stipulated. 

The  same  rules  shall  be  applied  to  the  legatee. 

66 

Chapter  3. 
Of  Litigious  Rights. 

Art.  1969.  A  litigious  right  is  ceded  when  the  direct  object  of  the  ces- 
sion is  an  uncertain  event  in  the  litigation,  for  which  the  assignor  does 
not  make  himself  responsible. 

A  right  is  understood  to  be  litigious,  for  the  purposes  of  the  following 
articles,  from  the  moment  judicial  notice  of  the  suit  is  served. 

1 52 1  No.  4,  1854,  1869,  1669. 


407 

Art.  1970.  It  is  indifferent  whether  the  cession  has  taken  place  as  a 
sale  or  an  exchange,  and  whether  the  assignor  or  the  assignee  is  the  one 
seeking  to  enforce  the  right. 

1850. 

Art.  i  97  i.  The  debtor  shall  not  be  obliged  to  pay  the  assignee  more 
than  the  latter  may  have  given  for  the  right  ceded,  with  interest 
from  the  date  on  which  the  debtor  may  have  been  notified  of  the  cession. 

Purely  gratuitous  cessions  are  excepted  from  the  provisions  of  this 
article;  as  also  those  made  by  the  ministry  of  justice;  and  those  which 
are  comprised  in  the  alienation  of  a  thing  of  which  the  litigious  right 
forms  a  part  or  accession. 

There  are  excepted  also  the  cessions  made: 

1 .  To  a  co-heir  or  co-owner,  by  a  co-heir  or  co-owner,  of  a  right  which 
is  common  to  the  two. 

2.  To  a  creditor,  in  payment  of  what  the  assignor  owes  him. 

3.  To  one  who  enjoys  an  immovable  as  bona  fide  possessor,  usufruc- 
tuary or  lessee,  when  the  right  ceded  is  necessary  for  the  tranquil  and 
secure  enjoyment  of  the  immovable. 

1631. 

Art.  1972.  The  debtor  cannot  oppose  to  the  assignee  the  benefit 
granted  him  by  the  preceding  article,  after  the  expiration  of  ninety  days 
from  the  notice  of  the  decree  ordering  the  execution  of  the  judgment. 


408 


TITLE  XXVI. 

Of  the  Contract  of  Lease. 

Art.  1973.  A  lease  is  a  contract  in  which  the  two  parties  reciprocally 
obligate  themselves,  one  to  grant  the  enjoyment  of  a  thing,  or  to  execute 
a  work  or  render  a  service,  and  the  other  to  pay  a  certain  price  for  this 
enjoyment,  work  or  service. 

786. 

Chapter  i. 

Of  the  Lease  of  Things. 

Art.  1974.  All  corporeal  or  incorporeal  things  which  can  be  used 
without  being  consumed,  are  susceptible  of  lease ;  excepting  those  which 
the  law  prohibits  the  lease  of,  and  strictly  personal  rights,  as  those  of 
habitation  and  use. 

Even  a  thing  belonging  to  another  may  be  leased,  and  the  bona  fide 
lessee  shall  have  an  action  of  warranty  against  the  lessor,  in  the  event  of 
eviction. 

876,  1677  No.  9,  1871,  1893  et  seq. 

Art.  1975.  The  price  may  consist  either  of  money  or  of  the  natural 
fruits  of  the  thing  leased ;  and  in  the  latter  case  a  specific  amount  may 
be  fixed  or  a  quota  of  the  fruits  of  each  crop. 

It  is  called  a  rent  when  paid  periodically. 

2041  par.  2. 

Art.  1976.  The  price  may  be  determined  in  the  same  manner  as  in  a 
contract  of  sale. 

1864  et  seq. 

Art.  1977.  In  the  lease  of  things,  the  party  which  grants  their  enjoy- 
ment is  called  the  lessor,  and  the  party  which  gives  the  price,  the  lessee. 

Art.  1978.  The  delivery  of  the  thing  given  in  lease  'may  be  made 
under  any  of  the  forms  of  tradition  recognized  by  law. 

754- 

Art.  1979.  If  it  be  agreed  that  the  lease  shall  not  be  considered  per- 
fect until  an  instrument  shall  be  signed,  either  of  the  parties  may  with- 


40Q 

draw  before  this  is  done  or  the  thing  leased  is  delivered ;  if  earnest  money 
should  be  given,  the  same  rules  shall  apply  hereto  as  in  a  contract  of 
purchase  and  sale. 

1858,  1859  et  seq. 

Art.  1980.  If  the  same  thing  shall  have  been  separately  leased  to 
two  persons,  the  lessee  to  whom  the  thing  may  have  been  delivered  shall 
be  preferred;  if  it  shall  have  been  delivered  to  both,  the  subsequent 
delivery  shall  not  be  valid;  if  to  neither,  the  prior  title  shall  stand. 

1873. 

Art.  1 98 1.  The  lease  of  the  property  of  the  Union,  or  of  the  public 
establishments  of  the  latter,  shall  be  subject  to  the  provisions  contained 
in  this  chapter,  excepting  the  provisions  of  the  Codes  or  of  special  laws. 

639,  640. 

Chapter  2. 
Oj  the  Obligations  oj  the  Lessor  in  the  Lease  oj  Things. 

Art.  1982.  The  lessor  is  bound : 

1 .  To  deliver  the  thing  leased  to  the  lessee. 

2.  To  maintain  it  in  a  condition  such  as  to  serve  for  the  use  for  which 
it  is  leased. 

3.  To  free  the  lessee  from  any  disturbance  or  embarrassment  in  the 
enjoyment  of  the  thing  leased. 

1985,  1893  et  seq.,  1881. 

Art.  1983.  If  the  lessor,  through  his  own  act  or  fault,  or  through  that 
of  his  agents  or  employees,  shall  have  become  unable  to  deliver  the 
thing,  the  lessee  shall  have  a  right  to  withdraw  from  the  contract, 
recovering  damages. 

Such  damages  shall  lie  even  when  the  lessor  shall  have  erroneously 
and  in  good  faith  believed  himself  able  to  lease  the  thing;  unless  this 
inability  should  have  been  known  to  the  lessee,  or  were  due  to  force 
majeure  or  a  fortuitous  event. 

1564,  1882  par.  2,  1604,  64. 

Art.  1984.  If  the  lessor,  through  his  own  act  or  fault,  or  that  of  his 
agents  or  employees,  is  in  default  in  the  delivery,  the  lessee  shall  be 
entitled  to  recover  damages. 

If  the  utility  of  the  contract  shall,  through  the  delay,  be  notably 
diminished  for  the  lessee,   whether  through  the  deterioration  of  the 


4IQ 

thing  or  through  the  fact  of  the  conditions  which  were  the  cause  thereof 
having  ceased,  the  lessee  may  withdraw  from  the  contract,  with  a  right 
to  recover  damages,  if  the  delay  were  not  due  to  force  majeure  or  a  for- 
tuitous event. 

1608,  1 61 3,  161 5. 

Art.  1985.  The  obligation  to  maintain  the  thing  leased  in  a  good  con- 
dition, consists  in  making,  during  the  term  of  the  lease,  all  the  repairs 
necessary,  excepting  the  locative  ones,  which  shall  generally  be  made  by 
the  lessee. 

The  lessor  may  also  be  bound  for  the  locative  repairs,  if  the  deteriora- 
tions which  may  have  made  them  necessary  shall  have  been  due  to 
force  majeure  or  to  a  fortuitous  event,  or  the  bad  quality  of  the  thing 
leased. 

The  stipulations  of  the  contracting  parties  may  modify  these  obliga- 
tions. 

1998,  par.  2,  2028,  2029. 

Art.  1986.  The  lessor,  by  virtue  of  his  obligation  to  free  the  lessee 
from  any  disturbance  or  embarrassment,  cannot,  without  the  consent 
of  the  lessee,  change  the  form  of  the  thing  leased  nor  make  any  construc- 
tions or  works  thereon  which  may  embarrass  or  disturb  his  enjoyment 
thereof. 

Nevertheless,  if  repairs  are  involved  which  cannot  be  postponed  with- 
out grave  inconvenience,  the  lessee  shall  be  obliged  to  suffer  the  same, 
even  when  they  deprive  him  of  the  enjoyment  of  a  part  of  the  thing 
leased ;  but  he  shall  be  entitled  to  a  reduction  in  the  rental  or  lease  price 
during  such  time,  in  proportion  to  the  part  involved. 

And  if  these  repairs  should  involve  so  large  a  part  of  the  thing,  that 
the  remainder  should  not  appear  sufficient  for  the  purpose  for  which  it  was 
taken  in  lease,  the  lessee  may  consider  the  lease  terminated.  The  lessee 
shall,  furthermore,  have  the  right  to  recover  damages,  if  the  repairs 
should  be  due  to  a  cause  which  already  existed  at  the  time  of  the  con- 
tract and  was  not  then  known  to  the  lessee,  but  was  known  to  the  lessor, 
or  was  of  such  a  character  that  the  lessor  should  have  had  reason  to  fear 
it,  or  should  have  been  aware  thereof  by  reason  of  his  profession. 

The  same  shall  be  the  case  when  the  repairs  may  interrupt  the  enjoy- 
ment of  the  thing  for  a  considerable  time,  in  such  manner  that  the  lease 
cannot  subsist  without  grave  annoyance  or  damage  to  the  lessee. 

838,  2024,  1918. 

Art.  1987.  If  excepting  the  cases  provided  for  in  the  preceding 
article,  the  lessee  be  disturbed  in  his  enjoyment  by  the  lessor  or  by  any 


4ii 

person  who  may  be  forbidden  to  do  so  by  the  latter,  he  shall  be  entitled 
to  recover  damages. 

Art.  1988.  If  the  lessee  be  disturbed  in  his  enjoyment  by  the  en- 
croachment committed  by  third  persons  who  do  not  claim  a  right  to 
the  thing  leased,  the  lessee  shall  in  his  own  name  institute  proceedings 
for  the  repair  of  the  damage. 

And  if  he  be  disturbed  or  molested  in  his  enjoyment  by  third  persons 
who  establish  some  right  to  the  thing  leased,  and  the  cause  of  such 
right  should  have  been  prior  to  the  contract,  the  lessee  may  demand 
a  proportionate  reduction  in  the  lease  price  or  rent  for  the  time 
remaining. 

And  if  the  lessee,  as  a  consequence  of  the  rights  established  by  a  third 
person,  should  be  deprived  of  so  much  of  the  thing  leased  as  to  lead 
to  a  presumption  that  without  such  part  he  would  not  have  entered 
into  the  contract,  he  may  demand  that  the  lease  terminate. 

Furthermore,  he  may  demand  indemnity  for  all  damage,  if  the  cause 
of  the  right  established  by  the  third  person  was  or  should  have  been 
known  to  the  lessor  at  the  time  of  the  contract,  but  not  to  the  lessee, 
or  if  being  known  to  the  latter,  there  was  a  special  stipulation  of 
warranty  with  respect  to  the  same. 

But  if  the  cause  of  said  right  was  not  nor  should  have  been  known  to 
the  lessor  at  the  time  of  the  contract,  the  lessor  shall  not  be  obliged  to 
pay  the  ceasing  income  (lucro  cesante). 

950,  670,  978,  984,  2040,  2342,  2017,  1918. 

Art.  1989.  The  action  of  third  persons  claiming  a  right  to  the  thing 
leased,  shall  be  brought  against  the  lessor.  The  lessee  shall  be  obliged 
only  to  notify  him  of  the  disturbance  or  annoyance  which  he  may  suffer 
from  said  third  persons,  as  a  consequence  of  the  rights  they  plead,  and 
if  he  should  omit  or  delay  doing  so  through  his  fault,  he  shall  pay  the 
resulting  damages  to  the  lessor. 

786,  946,  952,  953,  361,  2040. 

Art.  1990.  The  lessee  is  entitled  to  the  termination  of  the  lease  and 
even  to  the  rescission  of  the  contract,  as  the  case  may  be,  if  the  bad  state 
or  quality  of  the  thing  should  prevent  him  from  making  the  use  thereof 
for  which  it  has  been  leased,* whether  the  lessor  was  or  was  not  aware  of 
the  bad  condition  or  quality  of  the  thing  at  the  time  of  the  contract ;  and 
even  in  the  event  of  the  vice  of  the  thing  having  begun  to  exist  after  the 
contract,  but  without  the  fault  of  the  lessee. 

If  the  impediment  for  the  enjoyment  of  the  thing  be  partial,  or  if  the 
thing  be  destroyed  in  part,  the  Judge  or  Prefect  shall  decide,  in  view  of 
the  circumstances,  whether  the  termination  of  the  lease  shall  take  place, 
or  whether  a  reduction  in  the  price  or  rental  shall  be  made. 

2033,  1921. 


412 

Art.  i  99  i.  The  lessee  shall  furthermore,  in  the  case  of  the  preceding 
article,  be  entitled  to  recover  the  emergent  damages,  if  the  vice  of 
the  thing  were  due  to  a  cause  prior  to  the  contract. 

And  if  the  vice  shall  have  been  known  to  the  lessor  at  the  time  of  the 
contract,  or  if  it  were  such  that  the  lessor  should  have  foreseen  it  in  view 
of  the  antecedents,  or  by  reason  of  his  profession,  the  ceasing  income 
shall  be  included  in  the  damages. 

2072,  2217,  1918. 

Art.  1992.  The  lessee  shall  not  be  entitled  to  recover  the  damages 
granted  him  by  the  preceding  article  if  he  entered  into  the  contract  with 
a  knowledge  of  the  existence  of  the  vice  and  the  lessor  did  not  bind  him- 
self to  warrant  it ;  or  if  the  vice  were  such,  that  it  could  not  have  been 
ignored  without  grave  negligence  on  his  part;  or  if  he  shall  have  ex- 
pressly renounced  the  action  of  warranty  by  reason  of  the  said  vice,  in- 
dicating it. 

2072,  2217,  1909  par.  3. 

Art.  1993.  The  lessor  is  obliged  to  reimburse  the  lessee  for  the  cost  of 
the  indispensable  repairs  which  are  not  locative,  that  the  lessee  may 
make  to  the  thing  leased,  provided  the  lessee  shall  not  have  made  them 
necessary  through  his  fault,  and  that  he  shall  have  given  notice  to  the 
lessor  as  soon  as  possible,  in  order  that  he  might  make  them  for  his  own 
account.  If  the  notice  could  not  have  been  given  in  time,  or  if  the 
lessor  did  not  make  them  in  due  time,  the  lessee  shall  be  allowed  their 
reasonable  cost,  upon  the  necessity  being  established. 

966,  965. 

Art.  1994.  The  lessor  is  not  obliged  to  reimburse  the  cost  of  the  use- 
ful improvements,  to  which  he  shall  not  have  agreed  with  the  express 
condition  of  paying  therefor;  but  the  lessee  may  separate  and  remove 
the  materials,  without  injury  to  the  thing  leased ;  unless  the  lessor  shall 
be  disposed  to  allow  him  the  value  of  the  materials,  considering  them 
separated  therefrom. 

966,  967,  968,  965. 

Art.  1995.  In  all  cases  in  which  the  lessee  shall  be  entitled  to  damages 
he  cannot  be  ejected  or  deprived  of  the  thing  leased,  until  the 
amount  thereof  be  paid  or  secured  to  him  by  the  lessor. 

But  this  rule  does  not  extend  to  the  involuntary  extinction  of  the  right 
of  the  lessor  to  the  thing  leased. 

859,  97o,  97i,  2000. 


413 

Chapter  3. 
Of  the  Obligations  of  the  Lessee  in  the  Lease  of  Things. 

Art.  1996.  The  lessee  is  obliged  to  make  use  of  the  thing  according  to 
the  terms  or  spirit  of  the  contract ;  and  he  cannot,  consequently,  make 
it  serve  for  other  purposes  than  those  agreed,  or  in  the  absence  of  an  ex- 
press agreement,  for  those  to  which  the  thing  is  naturally  destined,  or 
which  must  be  presumed  from  the  circumstances  of  the  contract  or  the 
custom  of  the  country. 

If  the  lessee  shall  violate  this  rule,  the  lessor  may  demand  the  termi- 
nation of  the  lease  with  indemnity  for  damages,  or  confine  himself  to 
such  indemnity,  leaving  the  lease  subsistent. 

1603,  2031,  1546. 

Art.  1997.  The  lessee  shall  employ  in  the  preservation  of  the  thing 
the  care  of  a  good  father  of  a  family. 

Should  he  fail  in  this  obligation,  he  shall  answer  for  the  damages ;  and 
the  lessor  shall  even  have  the  right  to  terminate  the  lease,  in  the  case  of 
a  grave  deterioration  chargeable  to  the  lessee. 

63  par.  4,  2037,  2030. 

Art.  1998.  The  lessee  is  bound  to  make  the  locative  repairs. 

By  locative  repairs  are  understood  those  which  according  to  the  custom 
of  the  country  are  chargeable  to  lessees,  and  in  general,  the  repairs  of 
such  deteriorations  as  are  ordinarily  produced  through  the  fault  of  the 
lesseee  or  his  employees,  as  the  damage  to  walls  or  fences,  sewers  or 
drains,  the  breaking  of  window  panes,  etc. 

854,  855,  856,  1985,  857,  2028,  2029. 

Art.  1999.  The  lessee  is  responsible  not  only  for  his  own  fault,  but 
for  those  of  his  family,  guests,  and  employees. 

2347- 

Art.  2000.  The  lessee  is  bound  for  the  payment  of  the  price  or  rent. 

The  lessor  may,  for  the  security  of  this  payment  and  the  indemnity 
to  which  he  may  be  entitled,  retain  all  the  existing  fruits  of  the  thing 
leased,  and  all  the  objects  with  which  the  lessee  may  have  furnished, 
adorned  or  provided  it,  which  bel6ng  to  him;  and  it  shall  be  presumed 
that  they  belong  to  him,  in  the  absence  of  proof  to  the  contrary. 

1995,  2417,  66,  2495. 


414 

Art.  200  i.  If  the  thing  having  been  delivered  to  the  lessee,  there 
should  be  any  dispute  as  to  the  price  or  rental,  and  neither  party  should 
produce  legal  proof  as  to  the  agreement  in  this  respect,  the  appraisal  of 
experts  shall  be  accepted,  and  the  costs  of  such  appraisal  shall  be  borne 
equally  by  the  lessor  and  the  lessee. 

Art.  2002.  The  payment  of  the  price  or  rental  shall  be  made  at  the 
times  stipulated,  or,  in  the  absence  of  a  stipulation,  in  accordance  with 
the  customs  of  the  country,  and  if  there  be  neither  a  stipulation  nor  a 
fixed  custom,  according  to  the  following  rules : 

The  rental  of  urban  property  shall  be  paid  by  months,  that  of  rural 
property,  by  years. 

If  a  movable  thing  or  live  stock  be  leased  for  a  certain  number  of  years, 
months,  days,  each  of  the  periodical  payments  shall  be  due  immediately 
after  the  expiration  of  the  respective  year,  month,  or  day. 

If  a  lease  be  made  for  a  lump  sum,  the  latter  shall  be  due  upon  the 
termination  of  the  lease. 

2009,  8,  2044,  2043.      13,  law  153  of  1887. 

Art.  2003.  When  the  lease  is  terminated  through  the  fault  of  the 
lessee,  the  lessee  shall  be  bound  for  the  payment  of  damages,  and  espec- 
ially for  the  payment  of  the  rental  for  the  time  lacking  to  the  day  on 
which  by  notice  to  quit  the  lease  could  have  been  terminated,  or  to  the 
day  upon  which  the  lease  would  have  terminated  without  notice  to  quit. 

He  may,  nevertheless,  relieve  himself  from  this  payment,  by  propos- 
ing, under  his  liability,  a  suitable  person  to  substitute  him  for  the  time 
lacking,  and  giving,  for  the  purpose,  a  sufficient  bond  or  other  surety. 

1604,  2026,  2013. 

Art.  2004.  The  lessee  has  not  the  power  to  assign  the  lease  nor  to  sub- 
lease, unless  it  shall  have  been  expressly  granted  him ;  but  in  such  case 
the  assignee  or  sub-lessee  cannot  use  or  enjoy  the  thing  except  under 
the  terms  stipulated  with  the  direct  lessee. 

752. 

V 

Art.  2005.  The  lessee  is  obliged  to  restore  the  thing  at  the  end  of  the 
lease. 

He  must  return  it  in  the  condition  in  which  it  was  delivered  to  him, 
taking  into  consideration  the  deterioration  caused  by  legitimate  use  and 
enjoyment. 

If  the  condition  in  which  it  was  delivered  should  not  be  evident,  it 
shall  be  understood  that  he  received  it,  in  a  serviceable  condition,  unless 
the  contrary  be  established. 

With  regard  to  the  damage  and  loss  occurring  during  his  enjoyment, 
he  must  prove  that  they  were  not  due  to  his  fault,  nor  to  the  fault  of  his 


415 

guests,  employees  or  sub-lessees,  and  in  the  absence  of  such  proof  he 
shall  be  held  liable. 

1604  par.  3,  1757. 

Art.  2006.  The  restitution  of  real  property  shall  be  effected  by  dis- 
occupying  it  entirely,  placing  it  at  the  disposal  of  the  lessor  and  deliver- 
ing the  keys,  if  there  be  any. 

Art.  2007.  In  order  that  the  lessee  be  considered  in  default  in  the 
restitution  of  the  thing  leased,  a  demand  on  the  part  of  the  lessor  shall 
be  necessary,  even  though  notice  to  quit  shall  have  been  served ;  and 
if,  upon  demand,  he  should  not  restore  it,  he  shall  be  adjudged  to  the 
full  payment  of  all  the  damages  due  to  the  delay,  and  to  the  rest  which 
may  be  proper  against  him  as  illegal  detainer. 

1608,  2035. 


Chapter  4. 

Of  the  Expiration  of  the  Lease  of  Things. 

Art.  2008.  The  lease  of  things  expires  in  the  same  manner  as  other 
contracts,  and  especially  : 

1 .  By  the  total  destruction  of  the  thing  leased. 

2.  By  the  expiration  of  the  time  stipulated  as  the  term  of  the  lease. 

3.  By  the  extinction  of  the  right  of  the  lessor,  according  to  the  rules 
hereafter  stated. 

4.  By  a  decision  of  a  Judge  or  Prefect,  in  the  cases  in  which  the  law 
provides  therefor. 

1546,  1996  par.  2. 

Art.  2009.  If  no  time  for  the  duration  of  the  contract  shall  have  been 
fixed,  or  if  the  time  be  not  determined  by  the  special  service  to  which  the 
thing  leased  is  destined  or  by  custom,  neither  of  the  parties  shall  have 
the  right  to  cause  it  to  cease,  unless  they  give  notice  to  quit  in  advance. 

The  notice  in  advance  shall  be  adjusted  to  the  period  or  measure  of 
time  which  governs  the  payments.  If  the  lease  be  at  so  much  per  day, 
week,  month,  the  advance  notice  shall  be  respectively  of  one  day,  of 
one  week,  of  one  month. 

The  notice  to  quit  shall  begin  to  run  at  the  same  time  as  the  next 
period. 

The  provisions  of  this  article  do  not  apply  to  the  lease  of  immovables, 
treated  of  in  chapters  5  and  6  of  this  Title. 

8,  2002,  2034,  2066.     13  of  law  153  of  1887. 


416 

Art.  20 i o.  He  who  has  given  notice  for  the  abatement  of  the  lease, 
cannot  afterwards  revoke  it  without  the  consent  of  the  other  party. 

Art.  201 1 .  If  an  obligatory  period  shall  have  been  fixed  for  one  of  the 
parties  and  a  voluntary  one  for  the  other,  the  stipulation  shall  be  observed 
and  the  party  having  the  power  to  terminate  the  lease  at  his  will,  shall, 
nevertheless,  be  obliged  to  give  the  notice  in  advance  referred  to. 

Art.  2012.  If  the  term  of  the  lease  shall  have  been  fixed  in  the  con- 
tract, or  if  the  duration  be  determined  by  the  special  service  to  which 
the  thing  leased  was  destined,  or  by  custom,  advance  notice  shall  not 
be  necessary. 

8.      13  of  law  153  of  1887. 

Art.  2013.  When  the  lease  is  to  terminate  by  virtue  of  the  notice  of 
either  of  the  parties,  or  by  reason  of  its  term  having  been  fixed  in  the 
contract,  the  lessee  shall  be  obliged  to  pay  the  rental  of  all  the  days  to 
the  date  of  its  termination,  even  though  he  shall  return  the  thing  volun- 
tarily before  the  last  day. 

2003,  1554,  2229. 

Art.  2014.  The  lease  having  been  terminated  by  notice  to  quit,  or 
in  any  other  manner,  in  no  case  shall  it  be  understood  that  the  apparent 
acquiescence  of  the  lessor  to  the  retention  of  the  thing  by  the  lessee,  is  a 
renewal  of  the  contract. 

If  the  date  for  the  restitution  having  arrived  the  contract  is  not  ex- 
pressly renewed,  the  lessor  shall  be  entitled  to  demand  it  whenever  he 
wishes  to  do  so. 

Nevertheless,  if  the  thing  be  real  property,  and  the  lessee,  with  the 
acquiescence  of  the  lessor,  shall  have  paid  the  rent  for  any  period  of  time 
subsequent  to  the  termination,  or  if  both  parties  should  have  manifested 
by  any  act,  equally  unequivocal,  their  intention  of  continuing  the  lease, 
the  contract  shall  be  considered  as  renewed  under  the  same  conditions  as 
formerly,  but  not  for  a  longer  period  than  three  months  in  urban  prop- 
erty and  the  time  necessary  to  utilize  the  work  begun  and  gather  the 
hanging  fruits  in  rural  property,  without  prejudice  that  at  the  expira- 
tion of  such  time  the  lease  be  renewed  in  the  same  manner. 

Art.  2015.  The  lease  having  been  renewed,  the  securities,  as  well  as  the 
pledges  or  mortages  constituted  by  third  persons,  shall  not  be  extended 
to  the  obligations  resulting  from  its  renewal. 

1690  No.  1,  1 70 1. 

Art.  2016.  The  right  of  the  lessor  over  the  thing  leased  having  been 
extinguished,  through  a  cause  beyond  his  control,  the  lease  shall  expire 
even  before  the  expiration  of  the  term  stipulated  for  its  duration. 


417 

If,  for  example,  the  lessor  shall  have  been  the  usufructuary  or  fiduciary 
owner  of  the  thing,  the  lease  expires  by  the  arrival  of  the  day  upon  which 
the  usufruct  must  cease  or  the  ownership  pass  to  the  cestui  que  trust;  not- 
withstanding what  may  have  been  stipulated  between  the  lessor  and  the 
lessee  as  to  the  duration  of  the  lease  and  without  prejudice  to  the  pro- 
visions of  article  853,  paragraph  2. 

H  Art.  201 7.  When  the  lessor  shall  have  contracted  in  a  special  capacity 
which  makes  the  duration  of  hrs  right  uncertain,  as  that  of  a  usufruc- 
tuary or  fiduciary  owner,  and  in  all  cases  in  which  his  right  shall  be  sub- 
ject to  a  resolutory  condition,  there  shall  be  no  right  to  indemnity  for 
damages  by  reason  of  the  termination  of  the  lease  by  the  resolution  of 
the  right.  But  if  having  such  capacity,  he  shall  have  leased  as  the  abso- 
lute owner,  he  shall  be  obliged  to  indemnify  the  lessee  unless  the  latter 
shall  have  entered  into  the  contract  knowing  that  the  lessor  was  not  the 
absolute  owner. 

1988  par.  4. 


Art.  2018.  In  the  case  of  expropriation  by  reason  of  public  utility, 
the  following  rules  shall  be  observed : 

1.  The  lessee  shall  be  given  the  time  necessary  to  utilize  the  works 
begun  and  harvest  the  hanging  fruits. 

2.  If  the  cause  of  the  expropriation  should  be  of  such  urgency  that 
this  is  not  possible,  or  if  the  lease  shall  have  been  granted  for  a  term  of 
years,  still  pending  at  the  time  of  the  expropriation,  and  this  should 
appear  in  a  public  instrument,  the  lessee  shall  be  entitled  to  damages 
from  the  Nation  or  from  the  person  making  the  expropriation. 

3.  If  only  a  part  of  the  thing  leased  shall  have  been  expropriated,  the 
rule  of  article  1988,  paragraph  3,  shall  apply. 

.  Art.  2019.  The  right  of  the  lessor  being  extinguished  through  his  own 
act  or  fault,  as  when  he  shall  sell  the  thing  leased  of  which  he  is  the  owner 
or  being  the  usufructuary  thereof,  he  shall  assign  the  usufruct  to  the 
owner,  or  shall  lose  the  ownership  for  the  non-payment  of  the  sale  price, 
he  shall  be  obliged  to  pay  the  lessee  damages  in  all  the  cases  in  which  the 
person  succeeding  him  in  his  right  is  not  bound  to  respect  the  lease. 

Art.  2020.  The  following  shall  be  bound  to  respect  the  lease : 

1 .  All  those  to  whom  the  right  of  the  lessor  shall  be  transferred  under 
a  lucrative  title. 

2.  All  those  to  whom  the  right  of  the  lessor  shall  be  transferred  under 
an  onerous  title,  if  the  lease  shall  have  been  contracted  in  a  public  instru- 
ment, excepting  mortgage  creditors. 

3.  The  mortgage  creditors,  if  the  lease  shall  have  been  executed  in  a 
public  instrument,  recorded  in  the  register  of  public  instruments,  prior 
to  the  mortgage  record. 


418 

The  lessee  of  real  property  may  himself  demand  the  record  of  said 
instrument. 

851,  2448,  2422,  2452. 

Art.  2021.  In  the  damages  which  the  lessee  may  suffer  by  reason  of 
the  extinction  of  the  right  of  its  author,  and  which,  according  to  the  pre- 
ceding articles,  he  may  recover,  are  included  those  which  the  sub-lessee 
may  suffer  on  his  part. 

The  direct  lessee  shall  seek  to  recover  these  damages  in  his  own  name, 
or  assign  his  right  of  action  to  the  sub-lessee. 

The  direct  lessee  must  reimburse  the  sublessee  the  advance  payments. 

Art.  2022.  An  agreement  not  to  alienate  the  thing  leased,  even  though 
it  entail  a  clause  of  the  nullity  of  the  alienation,  shall  not  give  the  lessee 
any  further  right  than  to  retain  the  lease  until  its  natural  termination. 

1 184,  1 93 1,  2440. 

Art.  2023.  If  the  creditor  or  creditors  .of  the  lessor  should  levy  execu- 
tion and  attachment  upon  the  thing  leased,  the  lease  shall  subsist,  and 
the  creditor  or  creditors  shall  be  substituted  in  the  rights  and  obligations 
of  the  lessor. 

'    If  the  thing  be  adjudicated  to  the  creditor  or  creditors,  the  provisions 
of  article  2020  shall  apply. 

2446,  2489,  par.  2. 

Art.  2024.  The  lessor  may  terminate  the  lease  in  whole  or  in  part 
when  the  thing  leased  requires  repairs  which  prevent  its  enjoyment  in 
whole  or  in  part,  and  the  lessee  shall  then  have  the  rights  granted  him 
by  the  rules  given  in  article  1986. 

Art.  2025.  The  lessor  can  in  no  case  whatsoever,  unless  there  be  an 
agreement  to  the  contrary,  terminate  the  lease  under  the  pretext  of 
needing  the  thing  leased  for  himself. 

Art.  2026.  The  declared  insolvency  of  the  lessee  does  not  necessarily 
terminate  the  lease. 

The  creditor  or  creditors  may  be  substituted  for  the  lessee,  upon  fur- 
nishing bond  to  the  satisfaction  of  the  lessor. 

Should  this  not  be  done,  the  lessor  shall  have  the  right  to  consider  the 
lease  terminated ;  and  he  shall  have  a  right  of  action  to  recover  damages 
against  the  lessee,  according  to  the  general  rules. 

1668,  2489  par.  2,  1546,  2003,  2056. 

Art.  2027.  The  leases  executed  by  tutors  or  curators,  by  the  father  of 
a  family  as  the  administrator  of  the  property  of  the  son,  or  by  the  hus- 
band as  the  administrator  of  the  property  of  his  wife,  shall  be  subject 


4i9 

(with  relation  to  the  duration  thereof  after  the  termination  of  the  tutor- 
ship or  curatorship,  or  the  marital  or  paternal  administration),  to  articles 
496  and  1813. 


Chapter  5. 

Special  Rules  Relating  to  the  Lease  of  Dwellings,  Warehouses 
and  Other  Buildings. 

Art.  2028.  The  so-called  locative  repairs  which  the  tenant  or  lessee  of 
the  house  is  obliged  to  make,  are  reduced  to  the  maintenance  of  the 
building  in  the  condition  in  which  he  received  it;  but  he  is  not  liable  for 
the  deterioration  due  to  legitimate  wear  and  tear,  or  to  force  majeure,  or 
to  a  fortuitous  event,  or  to  the  bad  quality  of  the  building,  by  reason 
of  its  age,  the  nature  of  the  soil,  or  defects  in  construction. 

1985,  1998. 

Art.  2029.  The  tenant  is  specially  bound: 

1 .  To  preserve  the  interior  integrality  of  the  walls,  roofs,  flooring  and 
tubing,  replacing  the  stones,  bricks  and  tiles  which  may  be  broken  or 
displaced  during  the  lease. 

2.  To  replace  the  broken  panes  in  the  windows,  doors  and  skylights. 

3.  To  keep  the  doors,  windows  and  locks  in  a  serviceable  condition. 

It  shall  be  presumed  that  he  received  the  building  in  a  good  condition, 
in  all  these  respects,  unless  the  contrary  be  established. 


66,  1768,  1998. 


Art.  2030.  The  tenant  is,  furthermore,  required  to  keep  the  walls, 
floors  and  other  interior  parts  of  the  building  in  a  fair  state  of  cleanliness ; 
to  keep  the  wells,  sewers  and  tubing  clear,  and  the  chimneys  swept. 

Grave  negligence  with  regard  to  any  of  these  matters  shall  entitle  the 
lessor  to  recovery  of  damages,  and  even  to  terminate  the  lease  at  once  in 
grave  cases. 

66,  1997. 

Art.  203 1 .  The  lessor  shall  have  the  right  to  dispossess  a  tenant  who 
uses  the  house  or  building  for  an  illicit  purpose,  or  who,  having  the  right 
to  sublease,  subleases  to  persons  of  notorious  bad  conduct  and  who,  in 
such  case,  may  likewise  be  dispossessed. 

1996. 


420 

Art.  2032.  If  a  house  or  apartment  be  rented  furnished,  it  shall  be 
understood  that  the  rental  of  the  furniture  is  for  the  same  term  as  that 
of  the  building,  unless  otherwise  stipulated. 

66,  1768. 

Art.  2033.  He  who  gives  in  lease  a  warehouse  or  store,  is  not  liable  for 
the  loss  of  tlie  merchandise  placed  therein,  except  in  so  far  as  the  loss 
shall  have  been  due  to  his  fault. 

He  shall  be  specially  liable  for  the  bad  condition  of  the  building;  un- 
less it  shall  have  been  manifest  or  known  to  the  lessee. 

19 1 8,  1990,  1 99 1. 

Art.  2034.  Notice  to  quit,  in  the  cases  in  which  it  lies,  must  be  given 
in  advance  one  full  term  of  those  designated  by  the  agreement  or  the 
law  for  the  payment  of  the  rent. 

2002,  2009  par.  2. 

Art.  2035.  Default  of  a  full  term  in  the  payment  of  the  rent,  shall 
entitle  the  lessor,  after  two  demands,  between  which  four  days  at  least 
must  elapse,  to  terminate  the  lease  at  once,  if  sufficient  security  be 
not  furnished  that  the  payment  will  be  made  within  a  reasonable  period, 
which  shall  not  be  under  thirty  days. 

1608  par.  1,  2007. 


Chapter  6. 

Special  Rules  Relating  to  the  Lease  of  Rural  Property. 

Art.  2036.  The  lessor  is  bound  to  deliver  the  rural  estate  accord- 
ing to  the  terms  stipulated.  If  the  area  should  be  different  from  that 
stipulated,  an  increase  or  reduction  in  the  price  or  rental  may  be  made, 
or  the  contract  rescinded,  according  to  the  provisions  of  the  Title  Of 
Purchase  and  Sale. 

1887  et  seq. 

Art.  2037.  The  rural  lessee  or  tenant  (colono)  is  obliged  to  use  the 
estate  as  a  good  father  of  a  family  would,  and  should  he  not  do  so,  the 
lessor  shall  have  the  right  to  stop  the  misuse  or  deterioration  of  the  estate, 
requiring  for  the  purpose  a  bond  or  other  sufficient  security,  and  even  to 
terminate  the  lease  at  once,  in  grave  cases. 

1997. 


42I 

Art.  2038.  The  tenant  is  specially  bound  for  the  preservation  of  the 
trees  and  woods,  confining  the  enjoyment  thereof  to  the  terms  stipu- 
lated. 

If  there  be  no  stipulation,  the  tenant  shall  confine  himself  to  using  the 
woods  for  purposes  connected  with  the  cultivation  and  working  of  the 
same  estate ;  but  he  cannot  fell  any  trees  for  the  sale  of  the  lumber,  fire- 
wood or  charcoal. 

842. 

Art.  2039.  The  power  of  the  tenant  to  sow  or  plant,  does  not  include 
that  of  felling  the  trees  to  use  the  place  occupied  thereby;  unless  this 
shall  have  been  expressed  in  the  contract. 

Art.  2040.  The  tenant  shall  take  care  that  no  part  of  the  land  leased 
be  encroached  upon,  and  shall  be  liable  for  his  omission  to  notify  the 
lessor,  if  the  extent  and  boundaries  of  the  estate  shall  have  been  known 
to  him. 

861,  1988,  1939. 

Art.  204 1 .  The  tenant  shall  not  have  the  right  to  demand  a  reduction 
of  the  price  or  rent,  pleading  extraordinary  fortuitous  events  which  have 
injured  or  destroyed  the  crop. 

A  tenant  on  shares  is  excepted,  as  by  virtue  of  the  kind  of  partnership 
existing  between  the  lessor  and  him,  the  former  bears  a  proportionate 
part  of  the  loss  which  the  latter  may  sustain  through  a  fortuitous  event 
before  or  after  the  gathering  of  the  fruits ;  unless  the  accident  shall  occur 
during  the  default  of  the  tenant  in  contributing  his  share  of  the  fruits. 

1876,  1975. 

Art.  2042.  Whenever  an  estate  shall  be  leased  together  with  the  live 
stock  thereon,  and  there  should  be  no  special  stipulation  to  the  contrary, 
all  the  profits  of  said  live  stock  shall  belong  to  the  lessee,  and  this  live 
stock  also,  with  the  obligation  of  leaving  on  the  estate  on  the  termina- 
tion of  the  lease,  an  equal  number  of  head  of  the  same  ages  and  qualities. 

If  at  the  end  of  the  lease  there  should  not  be  sufficient  animals  on  the 
estate  of  the  said  ages  and  qualities  to  make  the  restitution,  he  shall  pay 
the  difference  in  money. 

The  lessor  shall  not  be  obliged  to  receive  animals  which  are  not  habit- 
uated to  the  estate. 

Art.  2043.  Should  there  be  no  fixed  time  for  the  duration  of  the  lease, 
notice  to  quit  must  be  given  one  year  in  advance,  in  order  to  termi- 
nate it. 

The  year  shall  be  understood  in  the  following  manner : 


422 

The  day  of  the  year  upon  which  the  delivery  of  the  estate  to  the  tenant 
was  begun,  shall  be  considered  as  the  initial  day  of  the  successive  years, 
and  the  year  in  advance  shall  be  counted  from  this  initial  day,  even 
though  notice  to  quit  shall  have  been  served  some  time  before. 

The  parties  may  agree  on  another  rule,  if  they  deem  it  advisable. 

2002  par.  2,  2009  par.  2. 

Art.  2044.  If  nothing  shall  have  been  stipulated  as  to  the  time  of  pay- 
ment, the  custom  of  the  place  shall  be  observed. 

2002,8.    13  of  law  153  of  1887. 


Chapter  7. 

Of  the  Hiring  of  Domestic  Servants. 

Art.  2045.  In  the  hiring  of  domestic  servants,  one  of  the  parties  en- 
gages to  render  the  other,  for  a  salary,  certain  services  determined  in  the 
contract  or  by  the  custom  of  the  country. 

8.      13  of  law  153  of  1887. 

Art.  2046.  The  service  of  domestic  servants  may  be  contracted  for 
a  determinate  period;  but  it  cannot  be  stipulated  that  it  shall  last 
more  than  one  year,  unless  the  stipulation  shall  be  reduced  to  writing ; 
and  not  even  with  this  requisite  shall  the  servant  be  obliged  to  remain 
in  the  service  for  more  than  five  years  from  the  date  of  the  instrument. 

The  instrument  may  be  renewed  indefinitely. 

The  time  shall  be  considered  compulsory  for  both  parties,  in  the  ab- 
sence of  a  stipulation  to  the  contrary. 

1769,  1500,  1526,  1767,  66,  1768. 

Art.  2047.  If  no  time  shall  have  been  determined,  the  service  may 
cease  at  the  will  of  any  of  the  parties. 

Nevertheless,  if  the  servant  should  not  be  able  to  leave  unexpectedly, 
without  serious  inconvenience  or  damage  to  the  master,  he  may  be  obliged 
to  remain  in  the  service  the  time  necessary  for  his  replacement;  even 
though  notice  to  quit  shall  not  have  been  stipulated. 

A  servant  who  without  grave  cause  shall  violate  this  provision,  shall 
pay  the  master  a  sum  equivalent  to  two  weeks'  wages. 

Art.  2048.  A  woman  who  hires  out  as  a  wet  nurse,  shall  be  obliged 
to  remain  in  the  service  during  the  period  of  lactation,  or  until  she  can 
be  replaced  without  danger  to  the  health  of  the  child. 

Art.  2049.  If  a  servant  hired  for  a  certain  time  should  quit  without 


423 

grave  cause  before  the  expiration  thereof,  he  shall  pay  the  master,  by 
way  of  indemnity,  a  sum  equivalent  to  one  month's  wages. 

A  master  who  in  a  similar  case  should  dismiss  the  servant,  shall  be 
obliged  to  pay  him,  by  way  of  indemnity,  a  similar  sum,  in  addition  to 
that  due  him  for  services  rendered. 

If  less  than  one  month  should  be  lacking  to  make  up  the  period  stipu- 
lated, the  penalty  shall  be  reduced  on  either  side  to  the  value  of  the  wages 
for  one-half  the  time  lacking. 

Art.  2050.  If  it  shall  have  been  stipulated  that  to  terminate  the  ser- 
vice notice  in  advance  must  be  given  by  one  to  the  other,  he  who  shall 
violate  this  stipulation  without  grave  cause,  shall  be  obliged  to  pay  the 
other  a  sum  equivalent  to  the  time  of  the  advance  notice,  or  of  the  days 
lacking  to  complete  it.* 

2068. 

Art.  2051.  The  incompetency  of  the  servant,  any  act  of  faithlessness 
or  insubordination,  and  any  habitual  vice  injurious  to  the  service  or 
which  disturbs  domestic  order  shall  be  a  grave  cause  with  respect  to  the 
master;  and  with  respect  of  the  servant,  bad  treatment  on  the  part  of 
the  master,  and  any  attempt  by  the  latter  or  the  members  of  his  house- 
hold or  guests  to  induce  him  to  commit  a  criminal  or  immoral  act. 

The  contagious  sickness  of  either  shall  give  the  other  the  right  to  ter- 
minate the  contract. 

The  master  shall  have  the  same  right  if,  through  any  cause,  the  servant 
should  be  unable  to  render  the  service  for  more  than  one  week. 

2068. 

Art.  2052.  Upon  the  death  of  the  master,  the  contract  shall  be  con- 
sidered to  subsist  as  to  the  heirs,  and  the  latter  can  terminate  it  onlv  in 
the  manner  the  deceased  could  have  done  so. 

2077. 

Chapter  8. 
Of  Contracts  for  the  Construction  of  a  Material  Work. 

Art.  2053.  If  the  artificer  furnishes  the  material  for  the  construction 
of  a  material  work,  the  contract  is  one  of  sale ;  but  it  is  not  perfected 
without  the  approval  of  the  person  ordering  the  work. 

Consequently,  the  risk  of  the  thing  is  not  of  the  person  who  ordered  it 
until  after  its  approval,  unless  he  shall  have  been  tardy  in  declaring 
whether  he  approves  it  or  not. 


*The  Code  of  Chile  says:  ".     .     .     a  sum  equivalent  to  the  wages  for  the  time 
of  the  advance  notice.     .     .     ." 


424 

If  the  material  be  furnished  by  the  person  who  ordered  the  work,  the 
contract  is  one  of  lease  or  hire. 

If  the  principal  material  be  furnished  by  the  person  ordering  the 
work,  the  artificer  furnishing  the  remainder,  the  contract  is  one  of  lease ; 
otherwise,  one  of  sale. 

The  letting  out  of  a  work  is  subject  to  the  general  rules  governing  a 
contract  of  lease,  without  prejudice  to  the  special  rules  following. 

1849,  1850,  1973. 

Art.  2054.  If  no  price  shall  have  been  fixed,  it  shall  be  presumed  that 
the  parties  have  agreed  upon  that  ordinarily  paid  for  a  work  of  the  same 
kind,  and  in  the  absence  of  such,  that  which  may  be  considered  equitable 
in  the  opinion  of  experts. 

8.      13  of  law  153  of  1887. 

Art.  2055.  If  it  shall  have  been  agreed  to  give  the  power  to  fix  the 
price  to  a  third  person,  and  the  latter  should  die  before  the  execution  of 
the  work  is  begun,  the  contract  shall  be  null ;  if  after  the  execution  of  the 
work  shall  have  been  begun,  the  price  shall  be  fixed  by  experts. 

1865,  2063. 

Art.  2056.  A  suit  for  the  recovery  of  damages  shall  lie,  according  to 
the  general  rules  for  contracts,  if  either  party  shall  have  failed  to  per- 
form the  agreement  made,  or  delayed  its  performance. 

Consequently,  he  who  ordered  the  work,  even  in  the  case  of  a  lump 
sum  therefor  having  been  stipulated,  may  terminate  the  contract  upon 
reimbursing  the  artificer  for  all  the  expenses,  and  paying  him  the  value 
of  the  work  done,  and  what  he  might  have  earned  in  the  work. 

1546,  2003. 

Art.  2057.  The  loss  of  the  material  is  borne  by  the  owner  thereof. 

Consequently,  the  loss  of  the  material  furnished  by  the  person  order- 
ing the  work,  is  borne  by  the  latter ;  and  the  artificer  is  not  responsible 
unless  the  material  is  destroyed  through  his  fault  or  the  fault  of  the  per- 
sons serving  him. 

Even  though  the  material  should  not  be  destroyed  through  his  fault, 
nor  through  that  of  said  persons,  the  artificer  cannot  demand  the  price  or 
wages,  except  in  the  following  cases : 

1.  If  the  work  has  been  examined  and  approved. 

2.  If  it  has  not  been  examined  and  approved  through  the  delay  of  the 
person  who  ordered  the  work. 

3.  If  the  thing  is  destroyed  by  reason  of  a  defect  in  the  material  fur- 
nished by  the  person  who  ordered  the  work,  unless  the  defect  were  of 


425 

those  which  the  artificer,  by  reason  of  his  trade,  should  have  known ; 
or  that,  having  been  aware  thereof,  he  shall  not  have  given  due  notice  of 
the  same. 

1729  etseq.,  1876,  1604,  1877  par.  2,  1991  par.  2. 

Art.  2058.  The  examination  may  be  made  partially,  when  it  shall 
have  been  stipulated  that  the  work  should  be  approved  by  parts. 

Art.  2059.  If  the  person  who  ordered  the  work  shall  plead  that  it  has 
not  been  properly  constructed,  experts  shall  be  appointed  by  both 
parties  to  pass  thereon. 

If  there  should  be  grounds  for  the  charge  made  by  the  person  ordering 
the  work,  the  artificer  may  be  bound,  at  the  option  of  the  person  who 
ordered  the  work,  to  reconstruct  it  or  pay  the  damages. 

The  restitution  of  materials  may  be  made  with  others  of  the  same 
quality  or  in  money. 

1546. 

Art.  2060.  Contracts  for  the  construction  of  buildings,  celebrated 
with  a  contractor,  who  undertakes  the  entire  work  for  a  lump  sum  fixed 
in  advance,  are  subject,  furthermore,  to  the  following  rules : 

1 .  The  contractor  cannot  demand  an  increase  of  the  price,  under  the 
pretext  of  labor  or  material  having  increased  in  price,  or  of  additions  to 
or  modifications  in  the  original  plan ;  unless  a  special  price  for  such  addi- 
tions or  modifications  shall  have  been  stipulated. 

2.  If  unknown  conditions,  as  a  hidden  defect  in  the  soil  should  occasion 
expenses  which  could  not  be  foreseen,  the  contractor  must  receive 
authorization  therefor  from  the  owner;  and  if  the  latter  should  refuse, 
he  may  appeal  to  the  Judge  or  Prefect  to  decide  whether  or  not  the  ad- 
ditional labor  should  have  been  foreseen,  and  to  fix  the  increase  in  price 
which  may  be  proper  by  reason  hereof. 

3.  If  the  building  is  destroyed  or  threatens  to  collapse  in  whole  or  in 
part,  during  the  ten  years  following  the  delivery  thereof,  on  account  of  a 
defect  in  construction  or  in  the  soil  which  the  contractor  or  the  persons 
employed  by  him  should  have  been  aware  of  by  reason  of  their  trade,  or 
on  account  of  defective  material,  the  contractor  shall  be  liable;  if  the 
material  shall  have  been  furnished  by  the  owner,  the  liability  of  the  con- 
tractor shall  lie  only  in  accordance  with  article  2041,  last  paragraph.* 

4.  The  receipt  given  by  the  owner,  after  the  conclusion  of  the  work, 
signifies  only  that  the  owner  approves  it,  as  apparently  in  accordance 
with  the  plan  and  the  rules  of  the  trade,  and  does  not  relieve  the  con- 
tractor of  the  liability  imposed  upon  him  by  the  preceding  paragraph. 

5.  If  the  artificers  or  laborers  employed  in  the  construction  of  the  build- 
ing shall  have  contracted  directly  with  the  owner  for  their  respective 

*  The  citation  to  article  2041  is  incorrect;  it  should  be  2057,  last  paragraph. 


426 

wages,  they  shall  be  considered  as  independent  contractors,  and  shall 
have  a  direct  right  of  action  against  the  owner;  but  if  they  shall  have 
contracted  with  the  contractor,'  they  shall  have  no  right  of  action  against 
the  owner,  except  subsidiarily  to  the  extent  of  what  the  latter  owed  the 
contractor. 

2351,  1668,  1670. 

Art.  2061.  Rules  3,  4  and  5  of  the  preceding  article  extend  to  those 
who  undertake  the  construction  of  a  building  as  architects. 

Art.  2062.  All  contracts  for  the  construction  of  a  work  are  resolved 
by  the  death  of  the  artificer  or  contractor ;  and  if  there  should  be  prepared 
work  or  materials,  which  may  be  of  use  in  the  work  in  question,  the  per- 
son who  ordered  it  shall  be  obliged  to  receive  them  and  pay  their  value ; 
what  is  due  by  reason  of  the  work  already  done  shall  be  calculated  pro- 
portionately, taking  into  consideration  the  price  stipulated  for  the  entire 
work. 

The  contract  is  not  resolved  by  the  death  of  the  person  who  ordered 
the  work. 


Chapter  9. 
Of  the  Hiring  of  Immaterial  Services. 

Art.  2063.  Immaterial  works,  or  those  in  which  the  mind  predomi- 
nates over  the  labor,  as  a  literary  composition,  or  the  typographical  cor- 
rection of  a  printed  document,  are  subject  to  the  special  provisions  of 
articles  2054,  2055,  2056,  and  2059. 

Art.  2064.  Immaterial  services  consisting  in  a  long  series  of  acts,  such 
as  those  of  salaried  writers  for  the  press,  secretaries  of  private  individ- 
uals, preceptors,  nurses,  singers  and  actors,  shall  be  subject  to  the  special 
rules  which  follow. 

Art.  2065.  With  regard  to  each  of  the  partial  works  of  which  the  ser- 
vice consists,  the  provisions  of  article  2063  shall  be  observed. 

Art.  2066.  Either  of  the  parties  may  put  an  end  to  the  service  when 
he  wishes,  or  with  the  advance  notice  agreed  upon. 

If  the  remuneration  shall  consist  of  periodical  payments,  either  of  the 
parties  may  give  notice  to  the  other  of  his  intention  of  ending  the  con- 
tract, even  though  no  advance  notice  shall  have  been  stipulated  therein, 
the  notice  being  given  at  least  half  a  term  in  advance. 

2009. 

Art.  2067.  If  in  order  to  render  the  service  the  person  rendering  it  has 
been  obliged  to  change  his  residence,  the  other  party  shall  pay  the  reason- 
able expenses  of  going  and  coming. 


427 

Art.  2068.  If  the  person  rendering  the  service  shall  leave  without 
notice,  or  his  bad  conduct  shall  furnish  cause  for  his  dismissal,  he  cannot 
demand  anything  by  reason  of  notice  or  traveling  expenses. 

2051,  2050. 

Art.  2069.  The  preceding  articles  apply  to  the  services  which  accord- 
ing to  article  2144  are  subject  to  the  rules  of  mandates,  in  so  far  as  not 
in  contravention  thereof. 

Chapter  10. 
Of  the  Hiring  of  Transportation. 

Art.  2070.  The  hiring  of  transportation  is  a  contract  by  which  one 
party  engages,  upon  payment  of  a  certain  freightage  or  price,  to  trans- 
port or  cause  to  be  transported  a  person  or  thing  from  one  place  to 
another. 

The  person  undertaking  the  transportation  is  generally  called  the 
carrier,  and  takes  the  name  of  mule  driver,  wagon  driver,  boatman, 
according  to  the  mode  of  transportation. 

He  who  is  engaged  in  the  industry  of  directing  the  transportation  of 
persons  or  freight,  is  called  a  manager  of  transportation  (empresario  de 
trans  portes) . 

The  person  who  sends  or  ships  the  freight  is  called  the  consignor,  and 
the  person  to  whom  it  is  sent,  the  consignee. 

Art.  2071.  The  obligations  imposed  herein  upon  the  carrier  (acar- 
reador),  shall  be  understood  as  imposed  upon  the  manager  of  transpor- 
tation, as  liable  for  the  skill  and  good  conduct  of  the  persons  he  employs. 

Art.  2072.  The  carrier  is  responsible  for  the  loss  or  damage  which  the 
person  may  suffer,  on  account  of  the  bad  quality  of  the  carriage,  boat  or 
vessel  in  which  the  transportation  is  effected. 

He  is  also  liable  for  the  destruction  and  deterioration  of  the  freight, 
unless  otherwise  stipulated,  or  unless  a  vice  in  the  freight,  force  majeure 
or  an  unforeseen  event  be  proved. 

The  liability  of  the  carrier  shall  lie  not  only  for  his  own  act,  but  for 
that  of  his  agents  or  servants. 

1991,  1992,  1990. 

Art.  2073.  The  carrier  is  obliged  to  deliver  the  thing  at  the  place  and 
time  stipulated,  unless  he  shall  prove  force  majeure  or  a  fortuitous  event. 

The  carrier  cannot  plead  the  force  majeure  or  a  fortuitous  event  which 
he  could  have  avoided  with  average  prudence  or  care. 

Art.  2074.  The  price  of  the  transportation  of  a  woman  shall  not  be 
increased  by  the  fact  of  her  giving  birth  to  a  child  en  route,  even 
though  the  carrier  shall  have  ignored  that  she  was  with  child. 


428 

Art.  2075.  He  who  shall  have  contracted  with  the  carrier  for  the 
transportation  of  a  person  or  freight,  is  obliged  to  pay  the  price  or  freight- 
age of  the  transportation  and  indemnify  the  damages  caused  by  the  act 
or  fault  of  the  passenger  or  of  his  family  or  servants,  or  for  the  vice  of  the 
freight. 

2497  No.  2,  2347. 

Art.  2076.  If  for  any  cause  the  passenger  or  the  freight  should  not 
appear  in  due  time,  he  who  shall  have  treated  with  the  carrier  for  the 
transportation,  shall  be  obliged  to  pay  one-half  the  price  or  freightage. 

The  same  penalty  shall  be  suffered  by  the  carrier  who  shall  fail  to 
appear  at  the  place  and  time  agreed  upon. 

Art.  2077.  The  death  of  the  carrier  or  of  the  passenger  does  not  ter- 
minate the  contract;  the  obligations  are  transmitted  to  the  respective 
heirs,  without  prejudice  to  the  general  provisions  regarding  force  majeure 
or  a  fortuitous  event. 

2052,  64,  1604  par.  2. 

Art.  2078.  The  preceding  rules  shall  be  observed  without  prejudice  to 
the  special  rules  for  the  same  objects,  contained  in  special  laws,  with 
relation  to  each  kind  of  traffic,  and  in  the  Code  of  Commerce. 


429 

TITLE  XXVII. 

Of  Partnership. 

Chapter  i.  . 
General  Rules. 

Art.  2079.  A  partnership  or  company  is  a  contract  by  which  two  or 
more  persons  bind  themselves  to  contribute  a  capital  or  other  effects,  to 
a  common  fund,  for  the  purpose  of  dividing  among  themselves  the 
profits  or  losses  resulting  from  the  investment. 

The  partnership  forms  a  juridical  person  distinct  from  the  partners 
individually  considered. 

Art.  2080.  In  the  deliberations  of  the  partners  having  a  right  to  vote, 
a  majority  of  votes  shall  decide,  which  majority  shall  be  computed  in 
accordance  with  the  terms  of  the  articles,  and  if  the  latter  should  contain 
no  provision  thereon,  the  numerical  majority  of  the  partners  shall  be 
decisive. 

The  cases  in  which  the  law  or  the  articles  require  unanimity,  or  which 
grant  any  of  the  partners  the  right  to  oppose  the  others,  are  excepted. 

Unanimity  is  necessary  for  any  substantial  modification  of  the  articles 
of  partnership;  unless  the  articles  themselves  should  provide  otherwise. 

2098,  2107. 

Art.  2081.  There  is  no  partnership  if  each  of  the  partners  does  not 
contribute  something  to  the  common  fund,  whether  it  consist  of  money 
or  effects,  or  of  an  industry,  service  or  work  appraisable  in  money. 

Nor  is  there  any  partnership  without  participation  in  the  profits. 

By  profit  is  not  understood  the  purely  moral  benefit,  not  appraisable 
in  money. 

Art.  2082.  Any  partnership  under  a  universal  title,  whether  of  present 
and  future  property  or  of  either,  is  prohibited. 

Any  partnership  of  acquets  and  gains,  under  a  universal  title,  is  like- 
wise prohibited,  excepting  between  spouses. 

Nevertheless,  any  property,  duly  specified,  may  be  placed  in  part- 
nership. 

1464,  1465,  1466,  1867. 

Art.  2083.  If  a  partnership  be  actually  formed  which  cannot  legally 
subsist,  neither  as  a  partnership,  nor  as  a  donation,  nor  as  any  contract, 
each  partner  shall  have  the  power  to  demand  that  the  previous  trans- 
actions be  liquidated,  and  withdraw  what  he  may  have  contributed. 


•       430 

This  provision  shall  not  apply  to  partnerships  which  are  null  by  reason 
of  the  illicit  character  of  the  cause  or  object. 

Art.  2084.  The  nullity  of  the  articles  of  partnership  does  not  preju- 
dice the  actions  of  third  persons  in  good  faith  against  all  and  every  one 
of  the  partners  by  reason  of  the  operations  of  the  partnership,  if  it  should 
actually  exist. 

Chapter  2. 

Different  Kinds  of  Partnerships. 

Art.  2085.  The  partnership  may  be  civil  or  commercial.  Commercial 
partnerships  are  those  formed  for  business  which  the  law  classifies  as 
commercial  acts.     The  others  are  civil  partnerships. 

Art.  2086.  It  may  be  stipulated  that  the  partnership  entered  into, 
even  though  not  commercial  in  its  nature,  be  subject  to  the  rules  govern- 
ing a  commercial  partnership. 

Art.  2087.  The  partnership,  whether  civil  or  commercial,  may  be  in 
general,  in  commendam  *  or  a  joint  stock  company. 

It  is  a  general  one  (colectiva)  when  all  the  partners  administer  per- 
sonally or  through  a  mandatary  selected  by  common  agreement. 

A  partnership  in  commendam  (en  comandita)  is  that  in  which  one  or 
more  of  the  partners  bind  themselves  only  to  the  extent  of  what  they 
may  have  contributed  to  the  partnership. 

A  joint  stock  company  is  that  in  which  the  partnership  capital  is 
furnished  by  stockholders  who  are  liable  only  to  the  value  of  their 
stock,  and  which  is  not  known  by  the  designation  of  any  individual,  but 
by  the  object  of  the  company. 

Art.  2088.  Partners  in  commendam  are  forbidden  to  include  their 
names  in  the  firm  name,  and  take  part  in  the  administration. 

A  violation  of  either  of  these  provisions,  shall  impose  upon  them  the 
same  liability  as  upon  the  members  of  a  general  partnership. 

Art.  2089.  General  partnerships  may  have  one  or  more  partners  in 
commendam,  who  shall  be  governed  by  the  provisions  regarding  partner- 
ships in  commendam,  the  others  being  subject  among  themselves  and  as 
to  third  persons  to  the  rules  of  general  partnerships. 

Art.  2090.  Civil  joint  stock  companies  are  subject  to  the  same  rules 
as  commercial  joint  stock  companies. 

Chapter  3. 

Principal  Clauses  of  the  Articles  of  Partnership. 

Art.  2091.  Should  no  time  or  condition  for  the  beginning  of  the  part- 
nership be  stated,  it  shall  be  understood  that  it  begins  on  the  date  of  the 

*  See  La.  Civil  Code,  arts.  2828  [2799],  2839  [2810]  to  2851  [2822]. 


43i 

contract;  and  should  no  time  or  condition  be  stated  for  its  termination, 
it  shall  be  considered  as  contracted  for  the  lives  of  the  partners,  reserv- 
ing the  right  of  resignation  or  withdrawal  (renuncia). 

But  if  the  object  of  the  partnership  shall  be  a  business  having  a 
limited  duration,  it  shall  be  understood  to  be  contracted  for  the  time  the 
business  lasts. 

Art.  2092.  The  contracting  parties  may  establish  the  rules  which  they 
may  consider  proper  for  the  division  of  the  profits  and  losses. 

Art.  2093.  The  contracting  parties  may  entrust  the  division  of  the 
profits  and  losses  to  a  third  person,  against  whose  decision  no  objection 
can  be  made,  unless  it  shall  be  manifestly  unjust,  and  not  even  for  this 
cause  shall  any  claim  be  allowed  if  three  months  shall  have  elapsed  since 
the  claimant  knew  thereof,  or  if  the  division  shall  have  been  begun  by 
him. 

This  division  cannot  be  entrusted  to  any  of  the  partners. 

If  the  person  to  whom  it  shall  have  been  entrusted  shall  die  before 
fulfilling  his  charge,  or  through  any  other  cause  whatsoever  should  not 
fulfill  it,  said  clause  shall  be  considered  as  not  in  force,  and  the  per- 
sons interested  may  entrust  the  charge  to  another  person. 

1535, 1865. 

Art.  2094.  In  the  absence  of  an  express  stipulation,  it  shall  be  under- 
stood that  the  division  of  the  profits  must  be  in  proportion  to  the  value 
of  the  property  which  each  partner  may  have  contributed  to  the  partner- 
ship capital,  and  the  division  of  the  losses  in  proportion  to  the  division 
of  the  profits. 

Art.  2095.  If  one  of  the  partners  should  contribute  only  his  industrv, 
service  or  labor,  and  there  should  be  no  stipulation  determining  his  share 
of  the  partnership  profits,  this  share  shall  be  fixed,  in  a  necessary  case, 
by  the  Judge;  and  if  no. stipulation  should  fix  his  share  in  the  losses,  it 
shall  be  understood  that  the  only  loss  falling  to  him  is  that  of  said 
industry,  labor  or  service. 

21 12. 

Art.  2096.  The  distribution  of  the  profits  and  losses  shall  not  be  under- 
stood either  with  respect  to  the  management  of  each  partner,  nor  with 
respect  to  each  transaction  in  particular. 

The  transactions  in  which  the  partnership  suffers  a  loss,  must  be  off- 
set with  those  in  which  it  derives  a  profit,  and  the  quotas  stipulated 
shall  include  the  final  result  of  the  partnership  transactions. 

Nevertheless,  the  partners  in  commendam  or  stockholders  in  the  joint 
stock  company,  are  not  obliged  to  collation  the  dividends  they  may  have 
received  in  good  faith. 


432 

4 

Chapter  4. 
Administration  of  the  General  Partnership. 

Art.  2097.  The  management  of  the  general  partnership  mav  be 
entrusted  to  one  or  more  of  the  partners,  either  by  the  articles  of  part- 
nership, or  by  an  act  subsequent  thereto  unanimously  agreed  to. 

In  the  former  case,  the  administrative  powers  of  the  partner  or  part- 
ners form  part  of  the  essential  conditions  of  the  partnership,  unless  other- 
wise stipulated  in  the  same  articles. 

Art.  2098.  The  partner  to  whom  the  administration  shall  have  been 
entrusted  by  the  articles  of  partnership,  cannot  renounce  his  duty  ex- 
cept for  a  cause  provided  for  in  the  constitutive  act,  or  unanimously 
accepted  by  the  co-partners. 

He  cannot  be  removed  from  his  office  excepting  in  the  cases  provided 
for,  or  for  a  grave  cause,  and  as  such  shall  be  considered  one  that  renders 
him  unworthy  of  trust  or  incapable  of  profitably  managing.  Any  of 
the  partners  may  demand  the  removal  upon  justifying  the  cause.  In 
the  absence  of  any  of  the  aforesaid  causes,  the  resignation  or  removal 
puts  an  end  to  the  partnership. 


[36,  2138,  2193,  2134,  2080  par. 


Art.  2099.  In  the  case  of  a  resignation  or  removal  with  cause,  of  the 
managing  partner  appointed  in  the  constitutive  act,  the  partnership 
may  be  continued,  provided  all  the  partners  agree  thereto,  and  in  the 
appointment  of  a  new  manager,  or  that  the  management  belong  in  com- 
mon to  all  the  partners. 

Should  there  be  several  managing  partners  appointed  in  the  constitu- 
tive act,  the  partnership  may  also  continue,  if  it  should  be  unani- 
mously resolved  that  the  remaining  partners  s'hall  assume  the  manage- 
ment. 

Art.  2100.  The  management  conferred  by  an  act  subsequent  to  the 
articles  of  partnership,  may  be  renounced  by  the  managing  partner  and 
revoked  by  a  majority  of  the  co-partners,  according  to  the  rules  of  an 
ordinary  mandate. 

2190  et  seq. 

Art.  2 10 1.  The  partner  upon  whom  the  management  shall  have  been 
conferred  by  the  articles  of  partnership,  or  by  a  subsequent  agreement, 
may  act  against  the  opinion  of  the  others ;  conforming,  however,  to  the 
legal  restrictions,  and  to  those  which  may  have  been  imposed  upon  him 
in  the  respective  mandate.  But,  nevertheless,  the  majority  of  the  part- 
n^rs  may  object  to  any  act  which  shall  not  have  produced  any  legal 
effects 


433 

Art.  2  i 02.  If  the  management  be  conferred  by  the  articles  of  partner- 
ship, or  by  a  subsequent  agreement,  upon  two  or  more  of  the  partners, 
each  of  the  managers  may  by  himself  perform  any  administrative  act; 
unless  the  title  of  his  mandate  shall  have  provided  otherwise. 

If  they  should  be  forbidden  to  act  separately,  they  shall  not  be  able  to 
do  so,  not  even  under  the  pretext  of  urgency. 

2157,  502,  510,  2153. 

Art.  2103.  The  managing  partner  must  confine  himself  to  the  terms 
of  his  mandate,  and  in  what  the  latter  is  silent,  it  shall  be  understood 
that  he  is  not  permitted  to  contract  in  the  name  of  the  partnership  other 
obligations,  nor  make  other  acquisitions  or  alienations  than  those  com- 
prised in  the  ordinary  routine  thereof. 

2158,  2160. 

Art.  2104.  It  shall  be  the  duty  of  the  managing  partner  to  care  for 
the  preservation,  repair  and  improvement  of  the  objects  forming  the 
fixed  assets  of  the  partnership;  but  he  shall  not  be  able  to  pledge  them, 
not  mortgage  them,  nor  alter  their  form,  even  though  the  alterations 
should  appear  to  him  to  be  advisable. 

Nevertheless,  if  the  alterations  should  have  been  so  urgent  that  he 
shall  not  have  been  given  time  to  consult  his  co-partners,  he  shall  be  con- 
sidered with  regard  to  them  as  a  negotiorum  gestor  (agente  oficioso)  of  the 
partnership. 

2174,  2304  et  seq. 

Art.  2105.  He  shall  bind  the  partnership  in  all  that  he  may  do  within 
the  legal  limits,  or  with  a  special  power  from  his  co-parti^rs;  acting 
otherwise,  he  only  shall  be  liable. 

640,  2120,  2157,  2186,  2199,  2177,  2180. 

Art.  2106.  The  managing  partner  is  obliged  to  make  a  report  of  his 
management,  at  the  times  designated  for  the  purpose  by  the  act  confer- 
ring the  management  upon  him,  and,  in  the  absence  of  such  designation, 
annually. 

2181. 

Art.  2107.  Should  the  management  not  have  been  conferred  upon 
one  or  more  of  the  partners,  it  shall  be  understood  that  each  one 
of  them  has  received  from  the  other  the  power  to  manage  with  the 
powers  mentioned  in  the  preceding  articles,  and  without  prejudice  to 
the  following  rules : 

1 .  Any  partner  shall  have  the  right  to  object  to  the  administrative  acts 


434 

of  the  other,  while  their  performance  may  be  pending,  or  while  they  shall 
not  have  produced  any  legal  effects. 

2.  Each  partner  may  avail  himself  of  the  things  belonging  to  the 
partnership  assets  for  his  personal  use,  provided  that  he  employ  them 
according  to  their  ordinary  destination,  and  without  prejudice  to  the 
partnership  and  the  just  use  of  the  others. 

3.  Each  partner  shall  have  the  right  to  oblige  the  others  to  defray 
with  him  the  expenses  necessary  for  the  preservation  of  the  partnership 
things. 

4.  None  of  the  partners  can  make  any  innovation  in  the  immovables 
subject  to  the  partnership,  without  the  consent  of  the  others. 

642,  2080. 

Chapter  5. 

Obligations  of  the  Partners  to  Each  Other. 

Art.  2108.  The  c'ontributions  to  the  partnership  capital  may  consist 
of  the  ownership  or  usufruct  of  things.  In  either  case  the  fruits  belong 
to  the  partnership  from  the  moment  the  respective  share  is  con- 
tributed thereto. 

Art.  2109.  A  partner  who  on  account  of  slight  fault  even  shall  have 
delayed  the  delivery  of  what  he  is  to  contribute  to  the  common  funds, 
shall  indemnify  the  partnership  for  all  the  damage  the  delay  may  have 
caused  it. 

This  provision  applies  also  to  a  partner  who  delays  in  rendering  the 
industrial  service  of  which  his  contribution  consists. 

Art.  2 1 10.  If  the  ownership  be  contributed,  the  risk  of  the  thing  shall 
be  borne  I  y  the  partnership,  according  to  the  general  rules,  and  the 
partnership  shall  be  relieved  of  the  obligation  of  restoring  it  in  kind. 

If  the  usufruct  only  be  contributed,  the  loss  or  deterioration  of  the 
thing,  not  chargeable  to  the  fault  of  the  partnership,  shall  be  borne  by 
the  partner  who  shall  have  contributed  only  the  usufruct  of  the  things. 

If  what  was  brought  into  the  partnership  should  consist  of  consumable 
(fungible)  things,  or  of  things  which  deteriorate  with  use,  or  of  things 
which  have  been  appraised  or  whose  price  has  been  fixed  by  common 
agreement,  or  of  manufactured  articles  or  articles  of  sale  connected  with 
the  business  or  operations  of  the  partnership,  the  ownership  shall  be 
vested  in  the  latter,  with  the  obligation  of  returning  their  value  to  the 
partner. 

This  value  shall  be  that  which  the  said  things  had  at  the  time  they 
were  brought  into  the  partnership ;  but  with  regard  to  the  things  which 
were  contributed  under  an  estimated  value,  such  estimated  value  only 
shall  be  due. 

1876,  1877  par.  2,  2057. 


435 

Art.  2  i  i  i  .  He  who  contributes  the  ownership  or  usufruct  of  a  specific 
thing,  is  bound,  in  case  of  eviction,  to  the  full  warranty  of  all  damage. 

1 893  et  seq. 

Art.  21 12.  If  the  articles  of  co-partnership  shall  assure  a  person  who 
offers  his  industry  a  fixed  amount  to  be  paid  him  in  full,  even  though  the 
partnership  shall  be  operating  at  a  loss,  this  amount  shall  be  considered 
as  the  price  of  his  industry,  and  he  who  exercises  it  shall  not  be  con- 
sidered a  partner. 

If  he  be  assigned  a  share  of  the  eventual  profits,  he  shall  not  be  entitled 
in  consideration  thereof  to  anything,  when  the  partnership  is  operating 
at  a  loss,  even  though  said  share  shall  have  been  assigned  to  him  as  the 
price  of  his  industry. 

2095. 

Art.  21 13.  No  partner  shall  be  required  to  contribute  to  the  partner- 
ship funds  a  larger  contingent  than  that  which  he  may  have  agreed  to. 
But  if  on  account  of  some  change  of  conditions  it  should  not  be  possible 
to  attain  the  object  of  the  partnership  without  increasing  the  shares,  the 
partner  not  agreeing  thereto  may  withdraw,  and  he  must  do  so  if  his 
co-partners  so  require. 

2327. 

Art.  21 14.  No  partner,  even  though  he  should  exercise  the  fullest 
administrative  powers,  can  bring  a  third  person  into  the  partnership, 
without  the  consent  of  his  co-partners ;  but  he  may  without  such  consent 
enter  into  a  partnership  with  said  third  person  himself,  and  then  a  special 
partnership  shall  be  formed  between  him  and  the  third  person,  which 
shall  only  relate  to  the  part  of  the  old  partner  in  the  original  partner- 
ship. 

1868. 

ART.  21 15.  Each  partner  shall  be  entitled  to  reimbursement  by  the 
partnership  of  the  sums  which  he  may  have  advanced,  with  its  know- 
ledge, for  the  obligations  he  may  have  contracted  legitimately  and  in 
good  faith  with  regard  to  the  partnership  affairs,  and  that  the  partner- 
ship indemnify  him  for  the  damages  which  the  dangers  inseparable  from 
his  management  may  have  occasioned  him. 

Each  of  the  partners  shall  be  bound  for  such  indemnity,  in  proportion 
to  his  partnership  interest,  and  the  share  of  the  insolvents  shall  be  dis- 
tributed in  the  same  manner  among  all 

1404  par.  2,  2329. 


436 

Art.  21 1 6.  If  a  partner  should  have  received  his  quota  of  a  partner- 
ship credit,  and  his  co-partners  cannot  later  obtain  their  respective  quotas 
of  the  same  credit,  on  account  of  the  insolvency  of  the  debtor,  or  for 
another  cause,  the  former  must  share  what  he  may  have  received  with 
the  latter,  even  though  it  shall  not  exceed  his  quota,  and  even  though  in 
the  receipt  he  shall  have  imputed  it  thereto. 

Art.  21 17.  The  profits  of  the  various  transactions  of  the  partners  in 
the  common  interest,  belong  to  the  partnership ;  and  the  partner  whose 
management  shall  have  been  more  profitable,  shall  not  be  entitled  in 
view  thereof  to  a  greater  share  of  the  profits. 

Art.  21 18.  If  a  managing  partner  be  the  creditor  of  a  person  who  is 
at  the  same  time  the  debtor  of  the  partnership,  and  if  both  debts  should 
be  demandable,  the  sums  which  he  may  receive  in  payment  shall  be 
imputed  to  the  two  credits  pro  rata,  notwithstanding  any  other  imputa- 
tion which  he  may  have  made  in  the  receipt,  prejudicing  the  partner- 
ship. 

And  if  in  the  receipt  the  imputation  should  not  be  to  the  prejudice  of 
the  partnership,  but  only  of  the  creditor  partner,  the  receipt  shall 
prevail. 

The  preceding  rules  shall  be  understood  without  prejudice  to  the 
right  which  the  debtor  has  to  make  the  imputation. 

1653,  1654,  1655.  i 

Art.  21 19.  Every  partner  is  liable  for  the  damages  which,  even 
through  a  slight  fault,  he  may  have  caused  the  partnership,  and  he  can- 
not oppose  in  compensation  the  earnings  which  his  industry  may  have 
produced  to  the  partnership  in  other  transactions,  unless  such  industry 
should  not  belong  to  the  partnership  capital. 

1804,  2326,  63. 

Chapter  6. 

Obligations  of  the  Partners  with  Respect  to  Third  Persons. 

Art.  2120.  A  partner  who  contracts  in  his  own  name  and  not  in  that 
of  the  partnership,  does  not  bind  it  with  regard  to  third  persons,  not 
even  by  reason  of  the  profit  which  it  receives  from  the  contract;  the 
creditor  shall  have  against  the  partnership  only  the  rights  of  action  of 
a  debtor  partner. 

It  shall  not  be  understood  that  the  partner  contracts  in  the  name  of 
the  partnership,  unless  he  shall  so  state  in  the  contract,  or  the  circum- 
stances show  it  in  an  unequivocal  manner.  In  case  of  doubt  it  shall  be 
understood  that  he  contracts  in  his  private  capacity. 

If  the  partner  contract  in  the  name  of  the  partnership,  but  without 
sufficient  power  therefor,  he  does  not  bind  it  as  to  third  persons  except 


437 

subsidiarily,  and  to  the  extent  of  the  profit  it  may  have  received  from 
the  transaction. 

The  provisions  of  this  article  comprise  also  a  partner  exclusively 
entrusted  with  the  administration. 

2105,  2177,  2180,  1668,  640,  2304  et  seq. 

Art.  2 12 1.  If  a  general  partnership  be  bound  with  respect  to  third 
persons,  the  total  amount  of  the  debt  shall  be  divided  among  the  part- 
ners in  proportion  to  their  partnership  interest  and  the  quota  of  the 
insolvent  partner  shall  be  a  charge  upon  the  others. 

It  shall  not  be  understood  that  the  partners  are  obligated  in  solidum, 
or  otherwise  than  in  proportion  to  their  interest  in  the  partnership, 
unless  this  shall  be  so  stated  in  the  title  of  the  obligation,  and  the  latter 
shall  have  been  contracted  by  all  of  the  partners,  or  with  a  special  power 
from  them. 

1579  last  par.,  2325,  2361,  2383,  1422,  1568,  2384. 

Art.  2122.  The  creditors  of  a  partner  have  no  right  of  action  against 
the  partnership  property,  unless  by  virtue  of  a  mortgage  prior  to  the 
partnership,  or  a  mortgage  subsequent  thereto  when  the  act  contribut- 
ing the  immovable  does  not  appear  on  record  in  the  proper  registration 
office. 

Nevertheless,  they  may  bring  against  the  partnership  the  indirect 
and  subsidiary  actions  granted  them  by  article  2 1 20. 

They  may  also  demand  the  attachment  in  their  favor  of  the  assign- 
ments made  to  their  debtor  on  account  of  the  partnership  profits,  or  of 
what  the  debtor  may  have  contributed  to  the  partnership,  or  of  the 
actions  of  the  said  debtor  in  the  partnership. 

Art.  2123.  The  liability  of  the  partners  in  commendam  or  of  stock- 
holders is  governed  by  the  provisions  of  chapter  2  of  this  Title. 

Chapter  7. 
Dissolution  of  the  Partnership. 

Art.  2124.  A  partnership  is  dissolved  by  the  expiration  of  the  term 
or  by  the  event  of  the  condition  which  shall  have  been  fixed  for  its 
termination. 

It  may,  nevertheless,  be  extended  by  the  unanimous  consent  of  the 
partners,  and  with  the  same  formalities  as  for  its  original  establishment. 

The  co-debtors  of  the  partnership  shall  not  be  liable  for  the  acts  which 
it  may  initiate  during  the  extension,  unless  they  shall  have  assented  to 
such  extension. 

Art.  2125.  The  partnership  is  dissolved  by  the  consummation  of  the 
business  for  which  it  was  established. 


438 

But  if  a  day  certain  shall  have  been  fixed  in  advance  for  the  termina- 
tion of  the  partnership,  and  if  this  day  should  arrive  before  the  conclu- 
sion of  the  business  and  the  partnership  should  not  be  extended,  the 
partnership  is  dissolved. 

Art.  2126.  The  partnership  is  likewise  dissolved  by  its  insolvency  or 
by  the  extinction  of  the  thing  or  things.which  form  its  entire  object. 

If  the  extinction  be  partial,  the  partnership  shall  continue,  reserving 
the  right  of  the  partners  to  demand  its  dissolution,  if  with  the  part 
remaining  it  could  not  be  continued  profitably,  and  without  prejudice 
to  the  provisions  of  the  following  article. 

Art.  2127.  If  any  of  the  partners  should  by  his  act  or  fault  fail  to 
keep  his  promise  to  bring  to  the  common  capital  the  things  or  the  indus- 
try which  he  has  engaged  to  in  the  articles  of  partnership,  the  others 
shall  have  the  right  to  consider  the  partnership  dissolved. 

1546. 

Art.  2128.  If  a  partner  shall  have  contributed  the  ownership  of  a 
thing,  the  partnership  subsists  even  though  such  thing  shall  be  destroyed, 
unless  it  could  not  continue  profitably  without  it. 

If  the  usufruct  only  shall  have  been  contributed,  the  loss  of  the  thing 
subject  to  the  usufruct  dissolves  the  partnership,  unless  the  contribut- 
ing partner  shall  replace  it  to  the  satisfaction  of  the  co-partners,  or  unless 
the  latter  shall  determine  to  continue  the  partnership  without  it. 

Art.  2129.  The  partnership  is  likewise  dissolved  by  the  death  of  any- 
of  the  partners,  unless  by  a  provision  of  law  or  by  the  articles  of  partner- 
ship it  is  to  continue  among  the  surviving  partners,  with  the  heirs  of  the 
deceased  or  without  them. 

But  even  excepting  such  case  the  partnership  shall  be  understood  to 
continue  until  the  managing  partners  receive  notice  of  the  death. 

Even  after  the  latter  shall  have  received  such  notice,  the  transactions 
begun  by  the  deceased  which  do  not  suppose  a  peculiar  skill  or  ability 
in  him,  must  be  carried  out. 

1311,  2194,  2199. 

Art.  2130.  A  stipulation  to  continue  the  partnership  with  the  heirs 
of  the  deceased  is  understood  as  of  right  in  those  formed  for  the  lease  of 
an  immovable,  or  for  the  working  of  mines,  or  in  joint  stock  companies. 

Art.  2 1 3 1 .  The  heirs  of  the  deceased  partner  who  are  not  to  enter  into 
partnership  with  the  surviving  partners,  can  demand  only  what  is  due 
their  principal,  according  to  the  state  of  the  partnership  affairs  at  the 
time  the  death  became  known ;  and  they  shall  not  participate  in  the  sub- 
sequent profits  or  losses,  excepting  in  so  far  as  they  should  be  a  conse- 
quence of  the  transactions  which  had  already  been  initiated  at  the  time 
the  death  was  known. 


439 

If  the  partnership  is  to  continue  with  the  heirs  of  the  deceased,  all  of 
them  shall  have  a  right  to  enter  therein,  excepting  only  those  who  by 
their  age  or  sex,  or  other  quality,  may  have  been  expressly  excluded  by 
the  law  or  the  articles. 

Excepting  this  case,  those  who  do  not  have  the  administration  of 
their  property  shall  participate  in  the  partnership  acts  through  their 
legal  representatives. 

Art.  2132.  The  partnership  ends  likewise  through  the  incapacity  or 
insolvency  of  one  of  the  partners. 

Nevertheless,  the  partnership  may  be  continued  with  the  incapacitated 
person  or  the  bankrupt,  and  in  such  case  the  curator  or  the  creditors 
shall  exercise  their  rights  in  the  partnership  operations. 

The  husband,  as  the  administrator  of  the  conjugal  partnership,  shall 
represent  in  the  same  manner  the  woman  whom  he  may  marry  and 
who  is  a  partner. 

1668. 

Art.  2133.  The  partnership  may  end  at  any  time  by  the  unanimous 
consent  of  the  partners. 

Art.  2134.  The  partnership  may  end  also  by  the  renunciation  of  one 
of  the  partners. 

Nevertheless,  when  the  partnership  shall  have  been  entered  into  for 
a  certain  time,  or  for  an  affair  of  limited  duration,  the  renunciation  shall 
have  no  effect,  if  the  articles  of  partnership  should  not  have  given  the 
power  to  make  it,  or  if  there  should  not  be  a  grave  motive,  as  the  non- 
performance of  the  obligations  of  another  partner,  the  loss  of  an  intelli- 
gent manager  who  cannot  be  replaced  from  among  the  partners,  the 
chronic  illness  of  the  person  making  the  renunciation  incapacitating  him 
for  the  partnership  duties,  bad  state  of  its  affairs  through  unforeseen 
circumstances,  or  others  of  similar  importance. 

2098,  par.  2. 

Art.  2135.  The  renunciation  of  a  partner  does  not  produce  any  effect 
whatsoever  except  by  virtue  of  his  notification  to  all  the  others. 

Notification  made  to  the  partner  or  partners  who  exclusively  ad- 
minister, shall  be  understood  as  made  to  all. 

Those  of  the  partners  who  may  not  have  been  notified  of  the  renuncia- 
tion, may  accept  it  later,  if  it  should  appear  to  them  advisable,  or  con- 
sider the  partnership  in  force  during  the  intermediate  time. 

2191. 

Art.  2136.  A  renunciation  made  in  bad  faith  or  unseasonably,  is  not 
valid. 

2098. 


44° 

Art.  2137.  A  renunciation  in  bad  faith  is  that  of  a  partner  who  re- 
nounces in  order  to  appropriate  to  himself  a  profit  which  should  belong 
to  the  partnership :  in  such  case  the  partners  may  oblige  him  to  divide 
with  them  the  profits  of  the  business,  or  to  support  exclusively  the  losses 
if  the  business  should  not  be  successful. 

They  may,  furthermore,  exclude  him  from  any  participation  in  the 
partnership  profits,  and  force  him  to  bear  his  share  of  the  losses. 

Art.  2138.  An  unseasonable  renunciation  is  that  of  a  partner  who  re- 
nounces when  his  withdrawal  is  prejudicial  to  the  partnership  interests. 
The  partnership  shall  continue  then  until  the  termination  of  the  pending 
affairs,  in  which  the  co-operation  of  the  person  making  the  renunciation 
may  be  necessery. 

Even  though  the  partner  should  have  an  interest  in  withdrawing,  he 
must  await  therefor  an  opportune  moment. 

The  effects  of  a  renunciation  in  bad  faith  indicated  in  the  last  para- 
graph of  the  preceding  article,  apply  to  an  unseasonable  renunciation. 

2098,  2d  par. 

Art.  2139.  The  provisions  of  the  preceding  article  apply  to  a  partner 
who  actually  withdraws  from  the  partnership  without  renunciation. 

Art.  2140.  The  dissolution  of  the  partnership  cannot  be  pleaded 
against  third  persons,  excepting  in  the  following  cases :  • 

1 .  When  the  partnership  shall  have  expired  by  the  arrival  of  the  cer- 
tain day  fixed  for  its  termination  in  the  articles. 

2.  When  notice  of  the  dissolution  shall  have  been  given  through  the 
press,  or  by  means  of  posters  affixed  in  three  of  the  most  frequented 
places  of  the  respective  place. 

3.  When  it  shall  be  proved  that  the  third  person  had  due  notice  thereof 
by  any  means  whatsoever. 

2199. 

Art.  2 141.  Upon  the  dissolution  of  the  partnership,  the  objects  com- 
posing the  partnership  capital  shall  be  divided. 

The  rules  governing  the  partition  of  hereditary  property,  and  the  obli- 
gations between  the  coheirs,  apply  to  the  division  of  the  partnership 
funds,  and  to  the  obligations  between  the  members  of  the  dissolved 
partnership,  excepting  in  so  far  as  opposed  to  the  provisions  of  this  title. 

1374  etseq. 


44i 

TITLE  XXVIII. 

Of  Mandate. 

.  Chapter  i  . 
Definitions  and  General  Rules. 

Art.  2142.  A  mandate  is  a  contract  in  which  one  person  entrusts  to 
another  the  direction  of  one  or  more  business  matters,  who  takes  charge 
thereof  for  the  account  and  risk  of  the  former. 

The  person  conferring  the  power  is  called  the  donor  (comiiente)  or 
principal  (mandante),  and  he  who  accepts  it  the  attorney-in-fact,  agent 
{procuvador)  and  in  general,  mandatary. 

1505. 

Art.  2143.  The  mandate  may  be  gratuitous  or  for  a  consideration. 
The  consideration  is  determined  by  an  agreement  between  the  parties, 
before  or  after  the  contract,  by  the  law  or  by  the  court. 

2063,  2064. 

Art.  2144.  The  services  of  the  professions  and  careers  which  suppose 
long  studies,  or  to  which  is  joined  the  power  of  representing  and  binding 
another  person,  as  to  third  persons,  are  subject  to  the  rules  of  mandate. 

2069. 

Art.  2145.  An  affair  that  interests  the  mandatary  only,  is  a  mere  ad- 
vice that  does  not  produce  any  obligation  whatsoever.* 

Art.  2146.  If  the  business  shall  interest  both  the  principal  and  the 
mandatary,  or  one  of  the  two,  or  both  and  a  third  person,  or  a  third  per- 
son exclusively  there  shall  exist  a  real  mandate ;  if  the  principal  act  with- 
out the  authority  of  the  third  person,  a  quasi  contract  of  a  negotiorum 
gestio  {agenda  oficiosa)  shall  arise  between  the  latter. 

516. 

Art.  2147.  A  simple  recommendation  of  the  affairs  of  another,  does 
not  constitute,  in  general,  a  mandate ;  the  Judge  shall  decide  according 
to  the  conditions,  whether  the  terms  of  the  recommendation  involve  a 
mandate.     In  case  of  doubt,  it  shall  be  considered  a  recommendation. 

Art.  2148.  A  mandatary  who  executes  a  void  mandate  in  good  faith 

*  The  Code  of  Chile  adds:  "  Bill  if  this  advice  be  given  maliciously,  it  renders  the 
indemnity  for  damages  obligatory." 


442 

or  who  by  an  unavoidable  necessity  goes  beyond  the  limits  of  his  man- 
date becomes  a  negotiorum  gestor. 

2304. 

Art.  2 149.  The  direction  of  the  matter  which  is  the  object  of  the  man- 
date may  be  conferred  by  a  public  or  private  instrument,  by  letters, 
verbally,  or  in  any  other  intelligible  manner,  and  even  by  the  tacit  acqui- 
escence of  a  person  to  the  management  of  his  affairs  by  another. 

1758,  1760,  1767.     91  to  93  of  law  153  of  1887. 

Art.  2 150.  A  contract  of  mandate  is  considered  perfect  by  the  accept- 
ance of  the  mandatary.     The  acceptance  may  be  express  or  implied. 

An  implied  acceptance  is  any  act  in  execution  of  the  mandate. 

The  mandate  having  been  accepted,  the  contract  cannot  be  dissolved 
except  by  the  mutual  will  of  the  parties. 

1494,  1506  par.  2,  1335,  2193. 

Art.  2 15 1.  The  persons  who  by  reason  of  their  profession  or  trade 
take  charge  of  the  affairs  of  others,  are  obliged  to  declare  as  soon  as  pos- 
sible whether  or  not  they  accept  the  power  conferred  upon  them  by  an 
absent  person;  and  upon  the  expiration  of  a  reasonable  time,  their 
silence  shall  be  considered  as  an  acceptance. 

Even  though  they  excuse  themselves  from  the  charge,  they  must  take 
such  urgent  conservative  measures  as  may  be  required  by  the  affair  en- 
trusted to  them. 

2176. 

Art.  2152.  There  may  be  one  or  more  principals,  and  one  or  more 
mandataries. 

Art.  2153.  If  two  or  more  mandataries  be  appointed,  and  the  princi- 
pal shall  not  have  divided  the  management,  the  mandataries  may  divide 
the  affairs  between  them;  but  if  he  shall  have  forbidden  them  to  act 
separately,  what  they  may  do  in  this  manner  shall  be  null. 

502,  510,  2102. 

Art.  2154.  If  a  person  not  qualified  as  to  age  or  a  married  woman  be 
appointed  a  mandatary,  the  acts  executed  by  the  mandatary  shall  be  valid 
with  respect  to  third  persons,  in  so  far  as  they  are  binding  upon  the  latter 
or  upon  the  principal ;  but  the  obligations  of  the  mandatary  to  the  prin- 
cipal and  third  persons,  cannot  have  any  effect  excepting  in  accordance 
with  the  rules  relative  to  minors  and  married  women. 

1505,  1639,  1504  par.  3. 


443 

Art.  2 155.  A  mandatary  answers  to  the  extent  of  a  slight  fault  in  the 
discharge  of  his  trust. 

This  liability  is  enforced  more  strictly  against  a  mandatary  who  acts 
for  a  consideration. 

On  the  contrary,  if  the  mandatary  shall  have  expressed  repugnance 
to  the  procuration,  and  has  considered  himself  to  a  certain  extent  forced 
to  accept  it,  yielding  to  the  repeated  requests  of  the  principal,  the  lia- 
bility incurred  by  him  shall  be  less  strictly  enforced. 

2247  No.  2,  63,  1604,  2244. 

Art.  2 1 56.  If  the  mandate  shall  comprise  one  or  more  specially  deter- 
mined affairs,  it  is  called  special ;  if  given  for  all  the  affairs  of  the  princi- 
pal, it  is  general ;  and  it  shall  also  be  such  if  given  for  all,  with  one  or 
two  specific  exceptions. 

The  administration  is  subject  in  all  cases  to  the  following  rules. 


Chapter  2. 
Of  the  A  dministration  of  the  Mandate. 

Art.  2157.  The  mandatary  shall  confine  himself  strictly  to  the  terms 
of  the  mandate,  excepting  in  the  eases  in  which  he  is  authorized  to  act 
otherwise  by  the  laws. 

640,  1505,  2102,  2186. 

Art.  2158.  The  mandate  does  not  naturally  confer  upon  the  manda- 
tary more  than  the  power  to  perform  acts  of  administration,  such  as  the 
payment  of  the  debts  and  the  collection  of  the  credits  of  the  principal, 
if  they  be  part  of  an  ordinary  administrative  management ;  sue  debtors, 
institute  possessory  actions  and  interrupt  prescriptions,  as  to  such  man- 
agement, contract  for  the  repairs  to  the  things  he  administers ;  and  pur- 
chase the  materials  necessary  for  the  cultivation  or  working  of  lands, 
mines,  factories,  or  other  industrial  objects  which  may  have  been  en- 
trusted to  him. 

For  all  acts  beyond  these  limits,  he  shall  require  a  special  power  of 
attorney. 

1640,  2103,  1468,  1633  par.  2,  1688,  1717,  1769,  2471,  1505,  2168. 

Art.  2159.  When  the  mandatary  shall  be  given  the  power  to  act  in 
the  manner  he  may  deem  most  advisable,  he  shall  not  thereby  be  con- 
sidered as  authorized  to  alter  the  substance  of  the  mandate,  nor  for  acts 
requiring  special  powers  or  clauses. 


444 

By  a  clause  of  free  administration  there  shall  be  understood  only  that 
the  mandatary  has  the  power  to  execute  such  acts  as  the  laws  designate 
as  authorized  by  such  clause. 

1688,  1505. 

Art.  2160.  The  proper  execution  of  the  mandate  includes  not  only 
the  substance  of  the  business  entrusted,  but  the  means  by  which  the 
principal  desired  that  it  should  be  carried  out. 

Nevertheless,  equivalent  means  may  be  employed,  if  necessity 
should  make  them  requisite,  and  the  object  of  the  mandate  should  be 
thereby  fully  obtained. 

1603,  2104. 

Art.  2 161.  The  mandatary  may  delegate  the  power  if  he  shall  not 
have  been  forbidden  to  do  so ;  but  should  he  not  be  expressly  authorized 
to  do  so,  he  shall  answer  for  the  acts  of  the.  substitute  as  he  would  for  his 
own. 

This  liability  shall  be  incurred  even  when  he  shall  have  been  expressly 
granted  the  power  to  substitute,  if  the  principal  shall  not  have  desig- 
nated the  person,  and  the  substitute  should  be  notoriously  incapable  or 
insolvent. 

1337- 

Art.  2162.  A  substitution  unauthorized  or  not  ratified  expressly  or 
impliedly  by  the  principal,  does  not  give  third  persons  a  right  of  action 
against  the  principal  for  the  acts  of  the  substitute. 

2157,  2186. 

Art.  2163.  When  the  delegation  to  a  determinate  person  shall  have 
been  expressly  authorized  by  the  principal,  a  new  mandate  is  constituted 
between  the  principal  and  the  substitute,  which  can  be  revoked  only  by 
the  principal,  and  which  is  not  extinguished  by  the  death  or  other  acci- 
dent occurring  to  the  previous  mandatary. 

Art.  2 164.  The  principal  may  in  all  cases,  exercise  against  the  substi- 
tute the  actions  of  the  mandatary  who  conferred  the  power  upon  him. 

Art.  2165.  In  the  inability  of  the  mandatary  to  make  donations  are 
naturally  not  understood  the  small  fees  customarily  given  to  persons  in 
service. 

Art.  2166.  The  acceptance  expressed  by  the  mandatary  of  what  is 
owed  the  principal,  shall  not  be  considered  as  an  acceptance  by  the  latter 
unless  the  thing  or  amount  delivered  shall  have  been  sufficiently  desig- 
nated in  the  mandate,  and  what  the  mandatary  shall  have  received  corre- 
sponds in  all  particulars  with  the  designation. 


445 

Art.  2167.  The  power  to  compromise,  does  not  include  that  of  obli- 
gating, nor  vice  versa. 

The  mandatary  cannot  defer  to  a  decisory  oath,  excepting  in  the  ab- 
sence of  any  other  proof. 

2471,  2169. 

Art.  2168.  A  special  power  to  sell  includes  the  power  to  receive  the 
price. 

Art.  2169.  The  power  to  mortgage  does  not  include  that  to  sell,  nor 
vice  versa. 

2439,  2412,  2167. 

Art.  2 1 70.  The  mandatary  cannot,  cither  in  person  or  through  a  third 
party,  purchase  the  things  which  the  principal  may  have  directed  him 
to  sell,  nor  sell  out  of  his  own  property  to  the  principal  what  the  latter 
may  have  ordered  him  to  buy,  unless  it  be  with  the  express  approval  of 
the  principal. 

1854,  1856. 

Art.  2  i  71.  If  he  shall  have  been  given  the  power  to  negotiate  a  loan, 
he  himself  may  lend  the  money  at  the  interest  designated  by  the  princi- 
pal, or  in  the  absence  of  such  designation,  at  the  current  rate  of  interest ; 
but  if  empowered  to  place  money  at  interest,  he  cannot  receive  it  as  a 
loan  to  himself  without  the  approval  of  the  principal. 

2i57- 

Art.  2172.  The  mandatary  cannot  put  out  at  interest  moneys  belong- 
ing to  the  principal,  without  his  express  authorization. 

Should  he  place  it  at  a  higher  rate  of  interest  than  that  designated  by 
the  principal,  he  must  pay  it  to  him  in  full,  unless  he  shall  have  been 
authorized  to  keep  the  excess. 

Art.  2173.  In  general,  the  mandatary  may  take  advantage  of  con- 
ditions to  execute  his  charge  at  a  greater  profit  or  a  less  expense  than 
those  designated  by  the  principal,  provided  that  under  other  respects  he 
does  not  deviate  from  the  terms  of  the  mandate.  He  is  prohibited  from 
appropriating  to  himself  the  amount  which  exceeds  the  profit,  or  is  under 
the  expense  designated  in  the  mandate. 

On  the  contrary,  if  he  should  negotiate  with  less  profit  or  at  a  greater 
expense  than  the  amounts  designated  in  the  mandate,  the  difference 
shall  be  imputable  to  him. 

Art.  2174.  The  powers  granted  the  mandatary  shall  be  interpreted 
with  somewhat  more  breadth,  when  he  is  not  in  a  position  to  consult  the 
principal. 

2104  par.  2. 


446 

Art.  2175.  The  mandatary  must  abstain  from  executing  a  mandate 
whose  execution  would  be  manifestly  pernicious  to  the  principal. 

Art.  2 176.  A  mandatary  who  finds  himself  unable  to  act  in  accordance 
with  his  instructions,  is  not  obliged  to  constitute  himself  a  negotiorum 
gcstor:  it  shall  be  sufficient  for  him  to  adopt  such  conservative  measures 
as  circumstances  may  demand. 

But  if  it  should  not  be  possible  to  fail  to  act  without  gravely  compro- 
mising the  principal,  the  mandatary  shall  proceed  as  closely  in  accor- 
dance with  his  instructions  as  possible,  and  as  may  be  most  advan  - 
tageous  with  regard  to  the  business. 

The  force  majeure  or  fortuitous  event  which  made  it  impossible  for  the 
mandatary  to  carry  out  the  orders  of  the  principal  must  be  proved  by 
the  former. 

2151,  1604  par.  3. 

Art.  2177.  The  mandatary  may,  in  the  exercise  of  his  procuration, 
answer  in  his  own  name  or  in  that  of  the  principal :  if  he  contracts  in  his 
own  name  he  does  not  bind  the  principal  as  to  third  persons. 

2105. 

Art.  2178.  The  mandatary  may,  by  a  special  agreement,  assume  the 
responsibility  of  the  solvency  of  the  debtors  and  all  the  uncertainties 
and  trouble  of  collections.  He  then  constitutes  himself  the  principal 
debtor  as  to  the  principal,  and  even  fortuitous  events  and  force  majeure 
are  at  his  risk. 

1604  par.  4,   1732,  64. 

Art.  2179.  The  specie  which  the  mandatary  may  have  in  his  posses- 
sion, for  the  account  of  the  principal,  is  destroyed  for  the  mandatary 
even  by  force  majeure  or  a  fortuitous  event,  unless  it  be  contained  in 
fastened  and  sealed  boxes  or  sacks  which  are  affected  by  the  accident  or 
the  force,  or  that  by  other  unequivocal  means  the  identity  can  be  incon- 
+estably  established. 

1604  par.  4,  1730,  2246. 

Art.  2180.  The  mandatary  who  shall  have  exceeded  the  scope  of  his 
mandate  is  liable  only  to  the  principal,  and  is  not  liable  to  third  persons, 
unless: 

1 .  He  shall  not  have  given  them  sufficient  information  as  t©  his  powers. 

2.  When  he  has  personally  obligated  himself. 

2120,  2177. 

Art.  2 1 81.  The  mandatary  is  obliged  to  render  an  account  of  his 
administration. 


447 

The  important  items  of  his  account  must  be  accompanied  by  vouchers 
unless  the  principal  shall  have  relieved  him  of  this  obligation. 

Relief  from  rendering  accounts  does  not  exonerate  the  mandatary 
from  the  charges  which  the  principal  may  prove  against  him. 

2312,  1319,  504,  1522,  1366,  1367. 

Art.  2182.  He  owes  the  principal  the  current  interest  on  money  of 
the  latter,  which  he  may  have  used  for  his  own  profit. 

He  owes,  likewise,  the  interest  on  the  balance  which  the  accounts  show 
against  him,  from  the  time  he  is  in  default. 

1608. 

Art.  2183.  The  mandatary  is  liable  for  what  he  shall  have  received 
from  third  persons,  under  the  mandate  (even  when  not  owed  the  prin- 
cipal), as  well  as  for  what  he  may  have  failed  to  receive  through  his  fault. 

495,  497,  1315. 


Chapter  3. 
Obligations  of  the  Principal. 

Art.  2184.  The  principal  is  obliged: 

1.  To  provide  the  mandatary  with  what  may  be  necessary  for  the 
execution  of  the  mandate. 

2.  To  reimburse  him  for  the  reasonable  expenditures  incurred  in  the 
performance  of  the  mandate. 

3.  To  pay  him  the  remuneration  agreed  upon  or  the  usual  compensa- 
tion. 

4.  To  pay  him  the  advances  of  money  out  of  the  current  interest. 

5.  To  indemnify  him  for  the  losses  he  may  have  incurred  without  his 
fault,  or  under  the  mandate. 

The  principal  cannot  relieve  himself  from  complying  with  these  obli- 
gations, by  pleading  that  the  business  entrusted  to  the  mandatary  was 
not  successful  or  that  it  could  have  been  transacted  at  a  lower  cost; 
unless  he  shall  prove  fault. 

Art.  2185.  A  principal  who  fails  to  fulfill  on  his  part  that  to  which  he 
is  bound,  authorizes  the  mandatary  to  discontinue  his  charge. 

Art.  2 1 86.  The  principal  shall  fulfill  the  obligations  which  the  man- 
datary shall  have  contracted  in  his  name  within  the  scope  of  the  mandate. 

The  principal  shall,  nevertheless,  be  bound,  if  he  shall  expressly  or 
impliedly  have  ratified  any  obligations  contracted  in  his  name. 

2308,  744,  766  No.  2,  1502,  1507,  1505,  2199,  742,  767,  1753  to 
1756,  2162. 


448 

Art.  2 187.  When  under  the  terms  of  the  mandate  or  the  nature  of  the 
business  it  shall  appear  that  it  should  not  have  been  executed  partially, 
the  partial  execution  shall  not  be  binding  upon  the  principal  except  in 
so  far  as  he  shall  be  benefited  thereby. 

The  mandatary  shall  answer  for  the  non-performance  of  the  remainder 
in  accordance  with  article  2193. 

Art.  2188.  The  mandatary  may  retain  the  effects  which  may  have 
been  delivered  to  him  for  the  account  of  the  principal  for  the  security  of 
the  prestations  to  which  the  latter  might  on  his  part  be  bound. 

2258,  2417  par.  2. 


Chapter  4. 
Of  the  Termination  of  the  Mandate. 

Art.  2189.  A  mandate  terminates: 

1.  By  the  performance  of  the  business  for  which  it  was  constituted. 

2.  By  the  expiration  of  the  term  or  the  event  of  the  condition  fixed  for 
the  termination  of  the  mandate. 

3.  By  revocation  by  the  principal. 

4.  By  renunciation  on  the  part  of  the  mandatary. 

5.  By  the  death  of  the  principal  or  the  mandatary. 

6.  By  the  bankruptcy  or  insolvency  of  either. 

7.  By  the  interdiction  of  either. 

8.  By  the  marriage  of  the  woman  who  is  the  mandatary. 

9.  By  the  cessation  of  the  functions  of  the  principal,  if  the  mandate 
shall  have  been  given  in  the  exercise  thereof. 

1641,  1644,  586,  180,  1805,  2197. 

Art.  2190.  The  revocation  of  a  mandate  may  be  express  or  implied. 
An  implied  revocation  is  the  act  of  conferring  the  same  business  upon 
another  person. 

If  the  first  mandate  be  general  and  the  second  special,  the  first  man- 
date subsists  as  to  the  affairs  not  included  in  the  second. 

Art.  2 191.  The  principal  may  revoke  the  mandate  at  his  will,  and  an 
express  or  implied  revocation  produces  its  effects  from  the  day  that  the 
mandatary  shall  have  had  knowledge  thereof. 

2135,  2199. 

Art.  2 192.  The  principal  who  makes  a  revocation  shall  have  the  right 
to  demand  of  the  mandatary  the  restitution  of  the  instruments  he  may 
have  placed  in  his  hands  for  the  execution  of  the  mandate ;  but  he  shall 
be  obliged  to  give  the  mandatary  a  copy  signed  with  his  own  hand  of 


449 

such  documents  as  he  may  require  to  justify  his  acts,  if  the  mandatary 
should  demand  it. 

Art.  2193.  The  resignation  of  the  mandatary  will  not  put  an  end  to 
his  obligations,  until  after  the  expiration  of  a  reasonable  time,  sufficient 
for  the  principal  to  provide  for  the  business  entrusted. 

Otherwise  he  shall  be  liable  for  the  damages  which  the  resignation 
may  cause  the  principal ;  unless  it  shall  be  impossible  for  him  to  admin- 
ister through  illness  or  another  cause,  or  without  grave  prejudice  to  his 
own  interests. 

1335,  2098,  2280,  2187  par.  2. 

Art.  2194.  Upon  the  natural  death  of  the  principal  becoming  known, 
the  mandatary  shall  cease  in  the  discharge  of  his  functions;  but  if  a 
suspension  thereof  should  prejudice  the  heirs  of  the  principal,  he  shall  be 
obliged  to  conclude  the  business  begun. 

2129  par.  3.     9  of  law  57  of  1887  and  comment. 

Art.  2195.  A  mandate  to  be  executed  after  the  death  of  the  principal 
is  not  extinguished  by  such  death.  The  heirs  succeed  in  this  case  in  the 
rights  and  obligations  of  the  principal. 

Art.  2196.  The  heirs  of  the  mandatary  qualified  to  administer  his 
property,  shall  immediately  notify  the  principal  of  his  death ;  and  they 
shall  do  in  favor  of  the  latter  what  they  can  and  the  circumstances  re- 
quire :  an  omission  in  this  regard  shall  make  them  liable  for  the  damages. 

Executors,  tutors  and  curators  are  subject  to  a  similar  liability,  as  well 
as  all  those  who  succeed  in  the  administration  of  the  property  of  the 
mandatary  who  shall  have  died,  or  become  incapacitated. 

1342,  1344. 

Art.  2197.  If  a  woman  shall  have  contracted  a  mandate  before  mar- 
riage, the  mandate  subsists;  but  the  husband  may  revoke  it  at  will.* 

2189,  No.  8. 

Art.  2 198.  If  there  be  two  or  more  mandataries,  and  by  the  constitu- 
tion of  the  mandate  they  are  obliged  to  act  jointly,  the  absence  of  one  of 
them,  for  any  of  the  aforesaid  faults,  f  terminates  the  mandate. 

Art.  2199.  In  general,  whenever  a  mandate  expires  through  a  cause 
unknown  to  the  mandatary,  what  the  latter  may  have  done  in  execution 
of  the  mandate  shall  be  valid,  and  shall  give  a  right  of  action  to  third 
persons  in  good  faith,  against  the  principal. 


*"If  the  woman   shall   have   conferred  a   mandate     .     .     ."     says  the   Chilian 
Code. 

t".     .     .     for  any  of  the  aforesaid  causes,     .     .     ."     says  the  Code  of  Chile. 


45o 

The  principal  shall  likewise  be  bounfl,  as  if  the  mandate  were  in  force, 
for  what  the  mandatary,  aware  of  the  cause  which  may  have  caused  it 
to  terminate,  shall  have  contracted  with  third  persons  in  good  faith; 
but  he  shall  have  the  right  to  indemnity  from  the  mandatary. 

When  notice  of  the  act  which  has  caused  the  expiration  of  the  man- 
date, shall  have  been  given  to  the  public  by  means  of  the  newspapers 
or  posters,  and  in  all  cases  in  which  ignorance  of  a  third  person  should 
not  appear  probable,  the  judge  may  in  his  discretion,  absolve  the 
principal. 

2129  pars.  2  and  3,  2135,  2365  par.  2,  2140  No.  2. 


TITLE  XXIX. 

Of  Co  111  mo  datum  or  Loan  tor  Use. 

Art.  2200.  Commodatum  or  loan  for  use  is  a  contract  by  which  one  of 
the  parties  delivers  to  the  other  gratuitously  a  specific  thing,  movable  or 
real,  for  him  to  make  use  thereof,  and  with  the  charge  of  returning  the 
same  thing  after  he  shall  have  done  using  it. 

This  contract  is  perfected  only  by  the  delivery  of  the  thing. 

823,  870,  754,  756. 

Art.  2201.  The  lender  retains  over  the  thing  loaned  all  the  rights 
which  he  previously  had,  but  not  their  exercise,  in  so  far  as  incompatible 
wTith  the  use  granted  the  borrower. 

762,  786. 

Art.  2202.  The  borrower  may  employ  the  thing  only  for  the  use 
agreed  upon,  or,  in  the  absence  of  an  agreement,  for  the  ordinary  use 
of  things  of  the  same  kind. 

In  case  of  violation  hereof,  the  lender  may  require  the  repair  of  all 
damage,  and  the  immediate  restitution,  even  though  a  term  shall  have 
been  stipulated  for  the  restitution. 

1603,  1546,  1996  par.  2. 

Art.  2203.  The  borrower  is  obliged  to  employ  the  greatest  care  in  the 
preservation  of  the  thing,  and  is  responsible  to  the  extent  of  a  very  light 
fault. 


45i 

He  is,  therefore,  responsible  for  any  deterioration  not  due  to  the 
nature  or  the  legitimate  Use  of  the  thing;  and  if  said  deterioration  be 
such,  that  the  thing  can  no  longer  be  employed  for  its  ordinary  use,  the 
lender  may  demand  the  former  price  of  the  thing,  abandoning  his  prop- 
erty to  the  borrower. 

But  he  is  not  responsible  for  a  fortuitous  event,  unless: 
i.   He  shall  have  employed  the  thing  for  an  improper  use,  or  delayed 
its  restitution,  unless  it  shall  appear  or  be  proved  that  the  deterioration 
or  loss  by  reason  of  the  fortuitous  event  would  have  occurred  equallv 
without  the  improper  use  or  delay. 

2.  Unless  the  fortuitous  event  shall  have  been  due  to  his  own  fault, 
even  though  very  slight. 

3.  In  the  alternative  of  saving  in  an  accident  the  thing  loaned  or  his 
own,  he  shall  have  deliberately  preferred  his  own. 

4.  He  shall  have  expressly  assumed  responsibility  for  fortuitous  cases. 

1604,  63,  64. 

Art.  2204.  Notwithstanding  the  provisions  of  the  preceding  article, 
if  the  commodatum  were  in  favor  of  both  parties,  the  liability  of  the 
borrower  shall  not  exceed  a  light  fault,  and  if  in  favor  of  the  lender,  a 
gross  fault. 

63  pars.  2  and  3,  1604. 

Art.  2205.  The  borrower  is  obliged  to  return  the  thing  loaned  at  the 
time  stated,  or  in  the  absence  of  an  agreement,  after  the  use  for  which 
it  has  been  loaned. 

But  the  restitution  may  be  demanded  even  before  the  time  agreed 
in  three  cases : 

1.  If  the  borrower  dies,  unless  the  thing  shall  have  been  loaned  for  a 
special  service  which  cannot  be  deferred  or  suspended. 

2.  If  an  unforeseen  and  urgent  need  of  the  thing  to  the  lender  arise. 

3.  If  the  service  for  which  the  thing  has  been  loaned  has  terminated 
or  does  not  take  place. 

1721,  2218. 

Art.  2206.  The  restitution  must  be  made  to  the  lender  or  to  the 
person  having  a  right  to  receive  it  in  his  name,  according  to  the  general 
rules. 

If  the  thing  shall  have  been  loaned  by  an  incapable  who  was  using  it 
with  the  permission  of  his  legal  representative,  the  restitution  to  such 
incapable  shall  be  valid. 

Art.  2207.  The  borrower  cannot  exempt  himself  from  the  restitution 


452 

of  the  thing,  by  retaining  it  for  security  of  what  the  borrower  may  owe 
him. 

1721,  2218,  2258. 

Art.  2208.  The  borrower  has  no  right  to  suspend  the  restitution,  by 
pleading  that  the  thing  loaned  does  not  belong  to  the  lender;  unless  it 
shall  have  been  lost,  stolen  or  robbed  from  its  owner,  or  that  it  be  judi- 
cially attached  in  the  hands  of  the  borrower. 

If  a  thing  lost,  stolen  or  robbed  shall  have  been  loaned,  the  bor- 
rower who  knows  it  and  does  not  so  inform  the  owner,  granting  him  a 
reasonable  period  to  demand  its  return,  shall  be  responsible  for  the 
damage  incurred  by  the  owner  through  the  restitution. 

And  if  the  owner  should  not  demand  its  return  in  due  time,  the  resti- 
tution may  be  made  to  the  lender. 

The  owner,  on  his  part,  cannot  require  the  restitution  without  the 
consent  of  the  lender  or  without  a  decree  of  the  Judge. 

2415. 

Art.  2209.  The  borrower  is  obliged  to  stay  the  restitution  of  all  kinds 
of  offensive  arms  and  of  anything  else  of  which  he  knows  a  criminal 
use  is  to  be  made,  but  he  must  place  them  at  the  disposal  of  the  Judge. 

The  same  shall  be  observed  when  the  lender  shall  have  lost  his  mind, 
and  has  no  curator. 

Art.  2210.  The  obligation  of  making  restitution  ceases  from  the  time 
the  borrower  discovers  that  he  is  the  true  owner  of  the  thing  lent. 

Nevertheless,  if  the  lender  disputes  the  ownership  he  must  make  res- 
titution unless  he  shall  be  in  a  position  to  prove  briefly  and  summarily 
that  the  thing  loaned  belongs  to  him. 

Art.  221 1.  The  obligations  and  rights  arising  from  the  loan  for  use, 
pass  to  the  heirs  of  both  contracting  parties,  but  those  of  the  borrower 
shall  not  have  the  right  to  continue  using  the  thing  loaned,  unless  it  be 
in  the  exceptional  case  of  article  2205  No.  1 . 

Art.  2212.  If  the  heirs  of  the  borrower  not  having  knowledge  of  the 
loan,  shall  have  alienated  the  thing  loaned,  the  lender  (if  not  desirous  or 
not  able  to  make  use  of  an  action  for  revendication  or  when  the  latter 
does  not  lie) ,  may  require  the  heirs  to  pay  him  the  just  price  of  the  thing 
loaned,  or  that  they  assign  to  him  the  rights  of  action  which  by  virtue 
of  the  alienation  they  may  have,  at  his  option. 

If  they  should  have  been  aware  of  the  loan,  they  shall  indemnify  all 
damages,  and  may  even  be  criminally  prosecuted,  according  to  the 
circumstances  attending  the  act. 

946,  1668,  2255. 


453       • 

Art.  2213.  If  the  thing  should  not  belong  to  the  lender,  and  the  owner 
should  demand  it  before  the  termination  of  the  loan,  the  borrower  shall 
have  no  action  for  damages  against  the  lender;  unless  the  latter  shall 
have  known  that  the  thing  belonged  to  another,  and  shall  not  have  noti- 
fied the  borrower  thereof. 

Art.  2214.  If  the  thing  shall  have  been  loaned  to  a  number,  all  are 
solidarity  responsible. 

1568. 

Art.  2215.  The  loan  for  use  is  not  extinguished  by  the  death  of  the 
lender. 

Art.  2216.  The  lender  is  obliged  to  indemnify  the  borrower  for  the 
expenditures  he  may  have  incurred  without  his  previous  notice,  for  the 
preservation  of  the  thing,  under  the  following  conditions : 

1.  If  the  expenditures  shall  not  have  been  of  the  ordinary  expenses 
for  maintenance,  such  as  the  feed  for  a  horse. 

2.  If  they  shall  have  been  necessary  and  urgent,  so  that  it  shall  not 
have  been  possible  to  consult  the  lender,  and  it  be  presumed  with  reason 
that  had  the  latter  had  the  thing  in  his  possession  he  would  not  have 
failed  to  incur  them. 

1998  par.  2. 

Art.  2217.  The  lender  is  obliged  to  indemnify  the  borrower  for  the 
damages  caused  him  through  the  bad  quality  or  condition  of  the  thing- 
loaned,  provided  that  the  bad  quality  or  condition  partakes  of  the  fol- 
lowing three  circumstances : 

1 .  That  it  shall  have  been  of  such  nature  that  it  probably  would  have 
caused  the  damage. 

2.  That  it  shall  have  been  known  to,  and  not  declared  by  the  lender. 

3.  That  the  borrower  would  not  have  been  able,  with  average  care, 
to  know  it  or  avoid  the  damages. 

1991,  1992,  2228. 

Art.  2218.  The  borrower  may  retain  the  thing  loaned  until  the  indem- 
nity referred  to  in  the  two  preceding  articles  shall  have  been  paid ;  unless 
the  lender  shall  give  surety  for  the  payment  of  the  amount  to  which  he 
may  be  adjudged. 

961,  1721,  2205,  2210,  2417  par.  2. 

Art.  2219.  The  loan  for  use  is  called  precarious  if  the  lender  reserve 
the  right  to  demand  the  thing  loaned  at  any  time. 

Art.  2220.  It  is  considered  precarious  when  the  thing  is  not  loaned 
for  a  particular  service,  nor  any  time  fixed  for  its  restitution. 


454 

The  possession  of  a  thing  of  another  is  also  precarious  when  held  with- 
out a  previous  contract  and  through  ignorance  or  mere  tolerance  on  the 
part  of  the  owner. 

762,  786,  2520. 


TITLE    XXX. 

Oi  Miitmim  or  Loan  for  Consumption. 

Art.  2221.  Mutuum  or  loan  for  consumption  is  a  contract  in  which  one 
of  the  parties  delivers  to  the  other  a  certain  amount  of  consumable  things 
with  the  obligation  of  restoring  a  similar  number  of  the  same  kind  and 
quality. 

823. 

Art.  2222.  A  contract  of  mutuum  is  not  perfected  except  by  the  de- 
livery, and  the  delivery  transfers  the  ownership. 

740- 

Art.  2223.  If  consumable  things  which  are  not  money  are  loaned,  a 
similar  amount  of  things  of  the  same  kind  and  quality  must  be  restored, 
whether  the  price  thereof  shall  have  risen  or  decreased  in  the  interval. 
And  if  this  should  not  be  possible  and  the  creditor  should  not  deniand 
it,  the  borrower  may  pay  what  they  may  be  worth  at  the  time  and  in  the 
place  where  the  payment  was  to  have  been  made.* 

1864  par.  3. 

Art.  2224.  If  money  shall  have  been  loaned,  the  numerical  sum  enun- 
ciated in  the  contract  only  shall  be  due. 

One  kind  of  money  may  be  given  for  another,  in  spite  of  the  lender, 
provided  that  the  two  sums  bear  the  relation  to  each  other  established 
by  law  between  the  two  kinds  of  money;  but  the  lender  shall  not  be 
obliged  to  receive  small  silver  or  copper,  except  to  the  limit  which 
special  laws  have  fixed  or  may  hereafter  fix. 

What  is  stated  in  this  article  is  understood  without  prejudice  to  an 
agreement  to  the  contrary. 

*The  Code  of  Chile  provides:  ".  .  .  And  if  this  should  not  be  possible  or 
the  creditor  should  not  demand  it     .     .     ." 


455 

Art.  2225.  If  no  term  shall  have  been  fixed  for  the  payment,  it  can- 
not be  demanded  before  the  expiration  of  ten  days  after  the  delivery. 

1551. 

Art.  2226.  If  it  shall  have  been  agreed  that  the  borrower  shall  pay 
when  able  to  do  so,  the  Judge  may,  taking  the  circumstances  into  con- 
sideration, fix  a  term. 

1 55 1  par.  2. 

Art.  2227.  If  a  person  who  did  not  have  the  right  to  alienate,  shall 
have  made  the  loan,  the  specific  things  may  be  recovered  as  long  as  their 
identity  is  evident. 

Their  identity  having  disappeared,  he  who  received  them  in  bad  faith 
shall  be  obliged  to  make  immediate  payment,  with  the  maximum  interest 
allowed  by  law;  but  a  borrower  in  good  faith  shall  be  bound  only  to 
the  payment  with  the  interest  agreed,  and  after  the  term  granted  by 
article  2225. 

1871. 

Art.  2228.  The  lender  is  responsible  for  the  damages  suffered  by  the 
borrower  on  account  of  the  bad  quality  or  hidden  defects  of  the  thing 
loaned,  under  the  conditions  mentioned  in  article  2217. 

If  the  hidden  defects  were  such  that,  if  known,  the  contract  would 
probably  not  have  been  entered  into,  the  borrower  may  demand  its 
rescission. 

19 14  et  seq. 

Art.  2229.  The  borrower  may  pay  the  entire  sum  loaned,  even  before 
the  term  stipulated,  unless  interest  shall  have  been  agreed  upon. 

1554,  1649,  2013. 

Art.  2230.  Interest  in  money  or  consumable  things  may  be  stipulated. 

Art.  2231.  A  conventional  interest  which  shall  exceed  by  one-half 
that  proved  to  have  been  at  the  time  of  the  agreement  the  current  rate  of 
interest,  shall  be  reduced  by  the  Judge  to  said  current  interest,  if  the 
debtor  should  request  it. 

1601,  2291. 

Art.  2232.  If  interest  should  be  stipulated  in  the  agreement  without 
stating  the  rate,  the  legal  rate  of  interest  shall  be  understood  to  be  fixed. 

The  legal  rate  of  interest  is  fixed  at  six  per  cent  per  annum. 

Art.  2233.  If  interest  shall  have  been  paid,  although  not  stipulated, 
it  cannot  be  sued  for  nor  imputed  to  the  capital. 

23H- 


456 

Art.  2234.  If  interest  shall  have  been  stipulated,  and  the  lender  shall 
have  given  a  receipt  for  the  principal,  without  expressly  reserving  the 
interest,  it  shall  be  presumed  to  be  paid. 

66,  1653  par.  2,  1628. 

Art.  2235.  The  compounding  of  interest  cannot  be  stipulated. 

15,  1617  No.  3,  1523,  1526. 


TITLE  XXXI. 
Of  Deposit  and  Sequestration. 

Art.  2236.  A  deposit  in  general  is  a  contract  by  which  a  corporeal 
thing  is  entrusted  to  a  person  who  binds  himself  to  preserve  it  and  return 
it  in  kind. 

The  thing  deposited  is  also  called  deposit. 

775,  786. 

Art.  2237.  The  contract  is  perfected  by  the  delivery  which  the  deposi- 
tor makes  of  the  thing  to  the  depositary. 

Art.  2238.  The  delivery  may  be  made  in  any  manner  which  transfers 
the  seizin  of  what  is  deposited. 

The  parties  may  also  agree  that  one  of  them  retain  as  a  deposit  what 
was  in  his  possession  for  another  cause. 

775,  786. 

Art.  2239.  There  are  two  species  of  deposit,  that  properly  so  called 
and  sequestration. 

Chapter  i. 

Of  the  Deposit  Properly  so  Called* 

Art.  2240.  The  deposit  properly  so  called  is  a  contract  in  which  one 
of  the  parties  delivers  to  the  other  a  corporeal  or  movable  thingf  to  take 
care  of  and  return  in  kind,  at  the  option  of  the  depositor. 

2342. 


*  See  La.  Civil  Code,  arts.  2928  [2899]  to  2931  [2902]. 

t".     .     .     a  corporeal  and  movable  thing     .     .     ."     says  the  Code  of  Chile. 


457 

Art.  2241.  An  error  as  to  the  personal  identity  of  either  contract- 
ing party,  the  substance,  quality  or  amount  of  the  thing  deposited,  does 
not  invalidate  the  contract. 

If  the  depositary,  however,  shall  have  been  mistaken  regarding  the 
person  of  the  depositor,  or  if  he  shall  discover  that  the  care  of  the  thing 
deposited  is  dangerous  to  him,  he  may  immediately  return  the  deposit. 

1512. 

Art.  2242.  When  according  to  the  general  rules  this  contract  must  be 
drawn  in  writing,  and  this  formality  shall  have  been  omitted,  the  word 
of  the  depositary  shall  be  taken  as  to  the  fact  itself  of  the  deposit,  the 
thing  deposited  or  the  fact  of  the  return. 

1757,  2249.     91  to  93  of  law  153  of  1887. 

Art.  2243.  This  contract  cannot  have  full  effect  except  between  per- 
sons capable  of  contracting. 

If  the  depositor  were  not  capable,  the  depositary  shall  contract,  never- 
theless, all  the  obligations  of  such. 

And  if  the  depositary  were  not  capable,  the  depositor  shall  only  have 
a  right  of  action  to  demand  the  thing  deposited,  while  still  in  the  posses- 
sion of  the  depositary,  and  in  the  absence  of  this  condition,  he  shall 
only  have  a  personal  action  against  the  depositary  to  the  extent  to  which 
the  deposit  may  have  made  him  wealthier,  reserving  the  right  which  he 
may  have  against  third  possessors,  and  without  prejudice  to  the  penalties 
which  the  laws  impose  upon  a  depositary  in  case  of  fraud. 

1504,  1747,  2262,  63  last  par. 

Art.  2244.  The  deposit  properly  so-called  is  gratuitous. 

If  any  compensation  for  the  simple  custody  of  a  thing  be  stipulated, 
the  deposit  becomes  a  hire  of  service,  and  the  person  rendering  the 
service  is  liable  to  the  extent  of  a  slight  fault ;  but  under  all  other  re- 
spects he  is  subject  to  the  obligations  of  the  depositary  and  enjoys  the 
rights  of  such. 

2155,  2063  etseq.,  63,  1604,  2258. 

Art.  2245.  By  the  mere  deposit,  the  depositary  is  not  granted  the 
power  to  use  the  thing  deposited  without  the  permission  of  the  depositor. 

This  permission  may  sometimes  be  presumed,  and  the  Judge  shall  have 
the  power  to  qualify  the  circumstances  which  justify  the  presumption, 
as  the  relations  of  friendship  and  trust  between  the  parties. 

This  permisson  is  more  easily  presumed  as  to  things  which  do  not 
appreciably  deteriorate  by  use. 

2420,  66,  1768  par.  3. 


458 

Art.  2246.  In  the  deposit  of  money,  if  it  be  not  in  a  locked  chest,  the 
key  to  which  is  held  by  the  depositor,  or  with  other  precautions  which 
render  it  impossible  to  remove  it  without  breakage,  it  shall  be  presumed 
that  its  use  is  permitted,  and  the  depositary  shall  be  obliged  to  return  a 
similar  amount  in  the  same  money. 

2179,  66,  2253. 

Art.  2247.  The  parties  may  stipulate  that  the  depositary  shall  answer 
for  all  faults  whatsoever. 

In  the  absence  of  such  stipulation  he  shall  answer  for  a  grave  fault 
only.  * 

But  he  shall  be  liable  for  a  light  fault  in  the  following  cases : 

1.  If  he  shall  have  offered  himself  of  his  own  free  will  or  shall  have 
sought  preference  to  another  person  as  depositary. 

2 .  If  he  shall  have  any  personal  interest  in  the  deposit,  either  by  rea- 
son of  being  permitted  to  use  it  in  certain  cases,  or  by  reason  of  com- 
pensation being  allowed  him. 

1602,  1604  par.  4,  63,  2263,  2306  par.  2,  1604,  2I55- 

Art.  2248.  The  obligation  to  care  for  the  thing  comprises  that  of 
respecting  the  seals  and  locks  of  the  package  containing  it. 

Art.  2249.  If  the  seals  shall  have  been  broken  or  the  locks  forced 
through  the  fault  of  the  depositary,  the  declaration  of  the  depositor 
regarding  the  number  and  quality  of  the  things  deposited  shall  be 
accepted ;  but  should  there  be  no  fault  on  the  part  of  the  depositary,  in 
case  of  disagreement  proof  shall  be  necessary. 

The  fault  of  the  depositary  is  presumed  in  every  case  of  breakage  or 
force. 

2242,  66,  1604. 

Art.  2250.  The  depositary  must  not  violate  the  secret  of  a  confidential 
deposit,  nor  can  he  be  obliged  to  reveal  it. 

Art*22  5  1 .  The  restitution  is  subject  to  the  will  of  the  depositor. 

If  a  time  be  fixed  for  the  restitution,  this  clause  shall  be  binding  only 
upon  the  depositary,  who  by  virtue  thereof  cannot  return  the  deposit 
before  the  time  stipulated ;  excepting  in  the  determined  cases  which  the 
laws  express. 

1721,  2252,  2280. 

Art.  2252.  The  obligation  to  take  care  of  a  thing  lasts  until  the  de- 
positor shall  ask  therefor;  but  the  depositary  may  demand  that  the 
depositor  dispose  thereof  upon  the  expiration  of  the  time  stipulated  for 
the  duration  of  the  deposit,  or  when,  even  though  the  term  shall  not  have 
expired,  the  deposit  be  in  danger  in  his  power  or  cause  him  damage. 


459 

And  if  the  depositor  do  not  dispose  thereof,  it  may  be  consigned  at  his 
expense  with  the  legal  formalities. 

2208,  2209,  2210,  2280,  1658  et  seq. 

Art.  2253.  The  depositary  is  bound  to  the  restitution  of  the  same 
individual  thing  or  things  which  may  have  been  placed  in  deposit,  even 
though  consisting  of  money  or  consumable  things,  excepting  in  the  case 
of  article  2206. 

The  thing  deposited  must  be  restored  with  all  its  accessions  and  fruits.* 

713  et  seq.,  2428. 

Art.  2254.  A  depositary  who  shall  not  have  delayed  the  restitution, 
is  naturally  not  responsible  for  force  majeure  or  a  fortuitous  event ;  but 
if  in  consequence  of  the  accident  he  shall  receive  the  price  of  the  thing 
deposited,  or  another  in  its  place,  he  is  obliged  to  return  to  the  depositor 
what  may  have  been  given  him. 

1604  par.  2. 

Art.  2255.  If  the  heirs,  not  having  notice  of  the  deposit,  shall  have 
sold  the  thing  deposited,  the  depositor  (if  not  able  or  not  willing  to  avail 
himself  of  the  action  for  revendication,  or  if  the  latter  should  not  lie) 
may  demand  that  they  return  to  him  what  they  may  have  received  for 
said  thing,  or  that  they  cede  to  him  the  rights  of  action  which  they  may 
have  by  virtue  of  the  alienation. 

752,  1871,  1874,  1875,  1668,  2212. 

Art.  2256.  The  cost  of  the  transportation  necessary  for  the  restitution 
of  the  deposit  shall  be  borne  by  the  depositor. 

Art.  2257.  The  rules  of  articles  2205  to  2210,  apply  to  the  deposit. 

Art.  2258.  The  depositary  cannot,  without  the  consent  of  the  depos- 
itor, retain  the  thing  deposited,  under  the  plea  of  compensation,  or  as 
security  for  what  the  depositor  may  owe  him ;  but  only  by  reason  of 
the  expenses  and  damages  referred  to  in  the  following  article. 

1721,  961,  2188,  2207,  2417  par.  2,  2421. 

Art.  2259.  The  depositor  must  indemnify  the  depositary  for  the 
expenses  he  may  have  incurred  in  the  preservation  of  the  thing,  and 
which  he  himself  would  probably  have  incurred,  had  he  had  it  in  his 
possession;  as  also  for  the  damage  which  without  his  fault  the  deposit 
may  have  occasioned  him. 

961,  2277. 


*  Article  2246  and  not  article  2206  should  have  been  cited  (Angarita). 


460 

Chapter  2. 

Of  the  Necessary  Deposit. 

Paragraph  i. 

Art.  2260.  A  properly  so-called  deposit  is  a  necessary  one,  when  the 
selection  of  the  depositary  does  not  depend  upon  the  free  will  of  the 
depositor,  as  in  the  case  of  a  fire,  earthquake,  pillage  or  another  simi- 
lar casualty. 

Art.  2261.  Proof  of  any  kind  whatsoever  is  admissible  with  regard 
to  the  necessary  deposit. 

1767.     91  to  93  of  law  153  of  1887. 

Art.  2262.  The  necessary  deposit  of  which  an  adult  takes  charge  who 
has  not  the  free  administration  of  his  property,  but  who  is  in  his  sound 
mind,  constitutes  a  quasi-contract,  which  is  binding  upon  the  depositary 
without  the  authority  of  his  legal  representative. 

1504  par.  3,  2243. 

Art.  2263.  The  liability  of  the  depositary  extends  to  a  slight  fault. 

2247,  63,  1604. 

Art.  2264.  The  necessary  deposit  is,  in  other  matters,  subject  to  the 
same  rules  as  the  voluntary  deposit. 

Paragraph  2. 

Art.  2265.  The  effects  which  a  person  seeking  lodging  in  a  tavern 
brings  therein,  and  delivers  to  the  innkeeper,  or  to  his  employees, 
shall  be  considered  as  deposited  under  the  custody  of  the  innkeeper. 
This  deposit  partakes  of  the  nature  of  a  necessary  deposit,  and  articles 
2261  et  seq.,  apply  thereto. 

Art.  2266.  The  innkeeper  is  liable  for  any  damage  which  may  be 
caused  said  effects  through  his  own  or  his  employees'  fault,  or  through 
the  fault  of  the  travelers  who  visit  the  inn,  and  even  for  theft  and 
robbery ;  but  not  for  force  majeure,  unless  it  be  chargeable  to  his  fault  or 
to  fraud. 

2497  No.  1,  63  last  par.,  64. 

Art.  2267.  The  innkeeper  is,  furthermore,  bound  to  the  security  of 
the  effects  which  the  guest  keeps  with  him.  In  this  respect  he  is  re- 
sponsible for  the  damage  caused,  or  the  theft  or  robbery  committed  by 
the  servants  of  the  inn,  or  other  strangers  who  do  not  belong  to  the 
household  or  are  not  visitors  of  the  guest. 


461 

Art.  2268.  A  guest  who  complains  of  damage,  theft  or  robbery,  must 
prove  the  number,  quality  and  value  of  the  effects  which  have  disap- 
peared. 

Art.  2269.  A  traveler  who  brings  with  him  effects  of  great  value, 
which  ordinarily  are  not  included  in  the  baggage  of  persons  of  his  class, 
must  so  inform  the  innkeeper,  and  even  show  them  to  him,  should  he 
require  it,  in  order  that  special  care  may  be  taken  in  their  custody;  and 
should  he  not  do  so,  the  Judge  may  dismiss  the  complaint  in  this  part. 

Art.  2270.  If  the  act  were,  in  some  manner,  chargeable  to  the  guest, 
the  innkeeper  shall  be  absolved. 

Art.  2271.  The  liability  of  the  innkeeper  shall  also  cease,  when  it 
shall  have  been  agreed  to  relieve  him  therefrom. 

Art.  2272.  The  provisions  of  the  preceding  articles  apply  to  the 
managers  of  restaurants,  (fondas),  cafes,  billiard  rooms  and  bathing 
establishments,  and  other  similar  establishments. 

Chapter  3. 
Of  Sequestration* 

Art.  2273.  Sequestration  is  the  deposit  of  a  thing  over  which  two  or 
more  persons  are  engaged  in  litigation,  in  the  hands  of  another  who 
must  return  it  to  the  person  in  whose  favor  the  decision  is  rendered. 

The  depositary  is  called  the  sequestrator. 

762,  786. 

Art.  2274.  The  rules  governing  sequestration  are  the  same  as  those 
for  the  deposit  properly  so-called,  reserving  the  provisions  of  the  follow- 
ing articles  and  those  of  the  laws  of  procedure. 

Art.  2275.  Not  only  movables,  but  real  property  also  may  be  the 
subject  of  sequestration. 

Art.  2276.  The  sequestration  is  conventional  or  judicial. 

The  conventional  sequestration  is. constituted  by  the  mere  consent  of 
the  persons  in  litigation  over  the  object. 

The  judicial  sequestration  is  constituted  by  a  decree  of  a  Judge,  and 
no  further  proof  is  necessary. 

958. 

Art.  2277.  The  depositors  contract  the  same  obligations  with  regard 
to  the  sequestrators  as  the  depositor  with  regard  to  the  depositary  in  a 
deposit  properly  so-called,  as  regards  the  expenses  and  damages  which 
the  sequestration  may  have  caused  him. 

961,  2258,  2259,  2417  par.  2,  2421. 


*  See  La.  Civil  Code,  arts  2972  [2941]  to  2981  [2950]. 


462 

Art.  2278.  If  the  sequestrator  should  lose  the  seizin,  he  may  demand 
it  of  any  person,  including  any  of  the  depositors,  who  may  have  taken 
it  without  the  consent  of  the  other,  or  without  an  order  from  the  Judge, 
a*s  the  case  may  be. 

950,  2342. 

Art.  2279.  The  sequestrator  of  an  immovable  has,  with  regard  to  its 
administration,  the  powers  and  duties  of  the  mandatary,  and  must  give 
an  account  of  his  acts  to  the  future  assignee. 

2158,  2181. 

Art.  2280.  Until  a  decision  of  adjudication  partaking  of  the  nature 
of  a  res  judicata  shall  have  been  made,  the  sequestrator  cannot  be  re- 
lieved of  his  charge,  except  by  reason  of  absolute  necessity,  of  which  he 
shall  advise  the  depositors,  if  the  sequestration  be  conventional,  or  the 
Judge  otherwise,  in  order  that  he  may  provide  for  his  relief. 

He  may  also  discontinue  before  such  decree,  by  the  unanimous  will 
of  the  parties,  if  the  sequestration  be  conventional,  or  by  a  decree  of  the 
Judge,  otherwise. 

2252,  2251,  2193,  2281. 

Art.  2281.  After  said  decision  shall  have  been  rendered  and  become 
final,  the  sequestrator  must  restore  the  deposit  to  the  person  to  whom  it 
may  have  been  awarded. 


463 


TITL.K  XXXII. 

Of  Aleatory  Contracts. 

Art.  2282.  The  principal  aleatory  contracts  are: 

1.  Gambling. 

2.  Betting;  and 

3.  The  constitution  of  life  annuities. 

1498. 

Chapter  i. 
Of  Gambling  and  Betting. 

Art.  2283.  Gambling  and  betting  do  not  produce  a  right  of  action, 
but  only  an  exception. 

He  who  wins  cannot  demand  payment. 

But  if  he  who  loses,  pays,  the  amount  paid  cannot  be  recovered  by 
suit,  unless  it  shall  have  been  won  by  fraud.* 

Art.  2284.  There  is  fraud  on  the  part  of  the  person  making  the  wager, 
if  he  positively  knows  that  the  act  in  question  has  taken  place  or  will 
take  place. 

63  last  par. 

Art.  2285.  What  has  been  paid  by  persons  who  do  not  have  the  free 
administration  of  their  property,  may  be  recovered  by  suit,  in  all  cases, 
by  the  respective  parents,  husbands,  tutors  or  curators. 

Art.  2286.  Notwithstanding  the  provisions  of  article  2283,  games  of 
strength  or  physical  skill,  such  as  that  of  arms,  foot  or  horse  racing, 
"pelota,"  ball  games,  and  others  of  a  similar  character,  produce  a  right 
of  action,  provided  that  they  are  not  in  contravention  of  the  police  laws. 

In  case  of  contravention,  the  Judge  shall  dismiss  the  complaint  in  toto. 

95  of  law  153  of  1887. 

Chapter  2. 

Of  the  Constitution  of  a  Life  Annuity. 

Art.  2287.  The  constitution  of  a  life  annuity  is  an  aleatory  contract 
under  which  one  person  binds  himself,  under  an  onerous  title,  to  pay  to 
another  a  periodical  allowance  or  pension,  during  the  life  of  either  of 
these  two  persons  or  of  a  third  person. 


*  Article  95  of  law  153  of  1887,  claims  to  amend  this  article  of  the  Civil  Code;  but 
in  truth  it  does  not  amend,  but  impliedly  repeals  it  (Angarita). 


464 

Art.  2288.  The  life  annuity  may  be  constituted  in  favor  of  two  or 
more  persons  to  enjoy  it  simultaneously,  with  or  without  the  right  of 
accretion,  or  successively,  according  to  the  order  agreed,  provided  that 
they  all  exist  at  the  time  of  the  contract. 

Art.  2289.  It  may  also  be  stipulated  that  the  life  annuity  shall  be  due 
during  the  life  of  a  number  of  persons,  who  shall  be  designated.  No  per- 
son not  existing  at  the  time  of  the  contract  can  be  designated  for  this 
object. 

Art.  2290.  The  price  of  the  life  annuity,  or  what  is  paid  for  the  right 
to  receive  it,  may  consist  of  money,  or  of  real  property  or  movables. 

The  pension  can  be  in  money  only. 

106  par.  2,  of  law  153  of  1887. 

Art.  2291.  The  contracting  parties  are  at  liberty  to  establish  such 
pension  as  they  may  desire,  under  title  of  life  annuity.  The  law  does 
not  determine  any  proportion  between  the  income  and  the  price. 

105  of  law  153  of  1887. 

Art.  2292.  The  contract  of  life  annuity  must  be  executed  by  a  public 
instrument,  and  shall  be  perfected  only  by  the  delivery  of  the  price. 

1760.      106  of  law  153  of  1887. 

Art.  2293.  A  contract  is  null  if  before  it  is  perfected  the  person  upon 
whose  existence  the  duration  of  the  annuity  depends  dies,  or  at  the  time 
of  the  contract  suffered  from  a  disease  which  may  have  caused  his  death 
within  the  next  thirty  days. 

Art.  2294.  The  creditor  cannot  demand  the  rescission  of  the  contract, 
even  in  the  event  of  the  pension  not  being  paid  him,  nor  can  the  debtor 
demand  such  rescission  even  by  offering  to  return  the  price,  and  return 
or  remit  the  pensions  due,  unless  the  contracting  parties  shall  have  stipu- 
lated otherwise. 

Art.  2295.  In  case  of  non-payment  of  the  pension,  the  property  of  the 
debtor  may  be  proceeded  against  for  the  payment  of  the  pensions  in 
arrears,  and  he  may  be  forced  to  give  surety  for  future  payments. 

Art.  2296.  If  the  debtor  should  not  furnish  the  surety  stipulated,  the 
creditor  may  demand  that  the  contract  be  annulled. 

Art.  2297.  If  the  third  person,  upon  whose  existence  the  duration  of 
the  annuity  depends,  should  survive  the  person  who  is  to  enjoy  it,  the 
right  of  the  latter  is  transferred  to  those  who  succeed  him  mortis  causa. 

4i5- 

Art.  2298.  In  order  to  demand  the  payment  of  the  life  annuity,  it 
shall  be  necessary  that  the  existence  of  the  person  upon  whose  life  it 
depends  be  established. 


4^5 

Art.  2299.  The  person  having  died,  upon  whose  existence  the  duration 
of  the  life  annuity  depended,  the  amount  for  the  full  current  year  shall 
be  due,  if  advance  payment  thereof  should  have  been  stipulated  in  the 
contract,  and  in  the  absence  of  such  stipulation  only  that  part  correspond- 
ing to  the  number  of  days  elapsed  shall  be  due. 

1418. 

Art.  2300.  The  life  annuity  is  not  extinguished  by  any  prescription 
whatsoever ;  unless  it  shall  not  have  been  received  or  claimed  for  more 
than  thirty  consecutive  years. 

2533  No.  1.      125  of  law  153  of  1887. 

Art.  2301.  When  a  life  annuity  is  constituted  gratuitously,  there  is 
no  aleatory  contract. 

It  shall  be  subject,  therefore,  to  the  rules  governing  donations  and 
legacies,  without  prejudice  to  being  governed  by  the  provisions  of  the 
preceding  articles  in  so  far  as  applicable  thereto. 

1498,  1443  etseq.,  1162  etseq.,  1242. 


466 


TITLE  XXXIII. 

Of  Quasi-Contract*. 

Art.  2302.  The  obligations  contracted  without  any  agreement,  arise 
either  from  the  law,  or  from  a  voluntary  act  of  one  of  the  parties.  Those 
arising  from  the  law  are  expressed  therein. 

If  the  act  from  which  they  result  be  licit,  it  constitutes  a  quasi-contract . 

If  the  act  be  illicit,  and  committed  with  the  intention  of  committing 
wrong,  it  constitutes  a  quasi-offense. 

In  this  title  quasi-contracts  only  are  treated  of.* 

1494. 

Art.  2303.  There  are  three  principal  quasi-contracts :  the  negotiorum 
gestio  {agenda  oficiosa),  the  payment  of  what  is  not  due  and  the  com- 
munity. 

Chapter  i. 

Of  Ncgotiorum  gestio  or  the  Management  of  Another's  Affairs.-\ 

Art.  2304.  The  negotiorum  gestio  or  the  management  of  another's 
affairs,  commonly  called  management  of  affairs,  is  a  contract  by  which 
he  who  administers  the  property^  of  a  person  without  a  mandate,  be- 
comes obligated  to  the  latter,  and  binds  said  person  in  certain  cases. 

Art.  2305.  The  obligations  of  the  negotiorum  gestor  or  manager  are 
the  same  as  those  of  the  mandatary. 

2157  et  seq. 

Art.  2306.  He  must  consequently,  employ  in  the  management  the 
care  of  a  good  father  of  a  family ;  but  his  liability  may  be  greater  or  less 
by  reason  of  the  circumstances  which  may  have  determined  the  manage- 
ment. 

If  he  shall  have  taken  charge  thereof  to  avoid  an  imminent  danger  to 
the  interests  of  another,  he  is  liable  only  for  fraud  or  grave  fault ;  and  if 
he  shall  have  assumed  the  management  voluntarily,  he  is  liable  to  the 
extent  of  a  slight  fault;  unless  he  shall  have  offered  to  assume  it,  pre- 
venting others  from  so  doing,  as  in  such  case  he  shall  be  liable  for  all 
faults. 

63,  1604,  2247  No.  1. 


*  Expressly  repealed  by  article  45  of  law  57  of  1887,  and  replaced  by  article  34  of 
the  same  law. 

t  vSee  La.  Civil  Code,  arts.  2295  [2274]  to  2300  [2293]. 

X  The  Code  of  Chile  says:  " 'The  negotiorum  gestio  .  .  .  is  a  quasi-contract  by 
which  he  who  administers  the  affairs  of  another     .     .     ." 


467 

Art.  2307.  He  must,  likewise,  take  charge  of  all  the  branches  of  the 
business,  and  continue  the  management  until  the  person  interested  can 
assume  it  or  place  it  in  the  hands  of  another. 

If  the  person  interested  should  die,  he  must  continue  the  management 
until  the  heirs  shall  act. 

2158. 

Art.  2308.  If  the  business  shall  have  been  well  administered,  the  per- 
son interested  shall  perform  the  obligations  which  the  manager  may 
have  contracted  in  the  management,  and  shall  reimburse  him  for  the 
useful  and  necessary  expenditures. 

The  person  interested  is  not  obliged  to  pay  any  salary  whatsoever  to 
the  manager. 

If  the  business  shall  have  been  badly  administered,  the  manager  shall 
be  responsible  for  the  damages. 

515,  516,  2186. 

Art.  2309.  He  who  administers  the  affairs  of  another  against  the  ex- 
press prohibition  of  the  person  interested  has  no  right  of  action  against 
him,  excepting  in  so  far  as  such  management  shall  have  been  actually 
profitable  to  him,  and  the  profit  shall  exist  at  the  time,  of  the  suit,  for 
example,  if  the  management  shall  have  resulted  in  the  extinction  of  a 
debt  which,  without  the  same,  the  person  interested  would  have  had  to 
pay. 

The  Judge,  nevertheless,  shall  in  such  case  grant  the  person  interested 
the  term  he  may  demand  for  the  payment  of  the  debt,  and  which  may 
appear  equitable  in  view  of  the  circumstances  of  the  defendant. 

1632,  2400  No.  2,  1551  par.  2. 

Art.  2310.  He  who  believing  that  he  is  transacting  his  own  business 
transacts  that  of  another,  shall  be  entitled  to  reimbursement  to  the  ex- 
tent of  the  net  profit  which  said  person  may  have  derived, and  which  shall 
be  in  existence  at  the  time  of  the  suit. 

Art.  23 1 1 .  He  who  believing  that  he  is  transacting  the  business  of  one 
person  is  transacting  that  of  another,  has  with  regard  to  the  latter  the 
same  rights  and  obligations  as  he  would  have  had  if  his  intention  had 
been  to  serve  the  real  person  interested. 

Art.  2312.  The  manager  cannot  bring  any  action  against  the  person 
interested,  without  first  having  rendered  a  regular  account  of  the  man- 
agement, with  vouchers  or  equivalent  proofs. 

2181. 


\  468 

Chapter  2. 
Of  the  Payment  of  What  is  not  Due. 

Art.  2313.  If  he  who  has  made  a  payment,  shall  prove  that  he  did  not 
owe  it,  he  shall  have  the  right  to  sue  for  the  recovery  of  the  amount  paid. . 

Nevertheless,  if  a  person,  in  consequence  of  his  own  error,  shall  have 
paid  the  debt  of  another,  he  shall  not  have  a  right  of  -action  to  recover 
against  the  person  who,  as  a  consequence  of  the  payment,  has  suppressed 
or  cancelled  a  title  necessary  for  the  collection  of  his  credit,  but  he  shall 
have  the  rights  of  action  of  the  creditor  against  the  debtor. 

1668,  1697,  1698,  1 1 17,  1 187,  1 190,  2233,  2401,  1542,  1552,  1872. 

Art.  2314.  What  shall  have  been  paid  in  the  performance  of  a  purely 
natural  obligation,  of  those  enumerated  in  article  1527,  cannot  be  sued 
for. 

2233. 

Art.  2315.  Even  what  may  have  been  paid  by  error  of  law  may  be 
recovered  by  suit,  when  the  payment  did  not  have  as  a  basis  even 
a  purely  natural  obligation. 

9,  768,  1509. 

Art.  2316.  If  the  defendant  shall  confess  the  payment,  the  plaintiff 
must  prove  that  it  was  not  due. 

If  the  defendant  deny  the  payment,  the  plaintiff  must  prove  it ;  and 
if  proved,  it  shall  be  presumed  as  not  due. 

1757,  66,  1769. 

Art.  2317.  He  who  gives  what  he  does  not  owe  is  not  presumed  to 
donate  it,  unless  it  be  proved  that  he  had  full  knowledge  of  what  he  was 
doing,  both  in  fact  as  in  law. 

1450,  2373,  1454. 

Art.  2318.  He  who  shall  have  received  money  or  a  fungible  thing 
which  was  not  due  him,  is  bound  to  the  restitution  of  a  similar  amount 
of  the  same  kind  and  quality. 

If  he  shall  have  received  in  bad  faith,  he  also  owes  the  current  interest. 

Art.  2319.  He  who  shall  have  received  in  good  faith,  is  not  respon- 
sible for  the  deterioration  or  loss  of  the  specific  thing  given  him  under 
the  false  impression  of  it  being  due  him,  even  though  it  shall  have 
been  due  to  his  negligence ;  excepting  in  so  far  as  he  shall  have  become 
wealthier  thereby. 


469 

But  from  the  time  he  knows  that  the  thing  was  improperly  paid,  he 
contracts  all  the  obligations  of  a  possessor  in  bad  faith. 

961  et  seq.,  768  et  seq. 

Art.  2320.  He  who,  in  good  faith,  shall  have  sold  the  thing  which 
may  have  been  given  him  as  due  him,  without  it  being  so  due,  is  obliged 
to  return  the  price  of  the  sale,  and  to  cede  the  actions  which  he  may 
have  against  the  purchaser  who  may  not  have  paid  him  in  full. 

If  he  shall  have  been  acting  in  bad  faith  when  he  made  the  salet  he  is 
bound  as  any  possessor  who  has  ceased  to  possess  fraudulently. 

955,  1668,  957,  1871. 

Art.  2321.  He  who  shall  have  paid  what  he  did  not  owe,  cannot  seek 
to  recover  the  specific  thing  possessed  by  a  third  person  in  good  faith, 
under  an  onerous  title;  but  he  shall  have  the  right  to  have  the  third 
person  who  possesses  it  under  any  lucrative  title,  return  it  to  him,  if  the 
thing  be  subject  to  revendication,  and  is  in  his  possession. 

The  obligations  of  the  donee  who  makes  restitution  are  the  same  as 
those  of  the  author  thereof,  according  to  article  2319. 

947  par.  2,  1547,  1548. 


Chapter  3. 
Of  the  Quasi-Contract  of  Community. 

Art.  2322.  The  community  of  a  universal  or  singular  thing,  between 
two  or  more  persons,  without  any  of  them  having  entered  into  a  part- 
nership, or  celebrated  any  other  agreement  with  regard  to  the  same 
thing,  is  a  kind  of  quasi-contract. 

Art.  2323.  The  right  of  each  of  the  co-owners  in  the  common  thing, 
is  the  same  as  that  of  the  partners  in  the  partnership  assets. 

2094,  2107. 

Art.  2324.  If  the  thing  be  universal,  as  an  inheritance,  each  of  the 
co-owners  is  bound  to  the  debts  of  the  thing  held  in  common,  as  the  heirs 
in  hereditary  debts. 

141 1  et  seq. 

Art.  2325.  With  regard  to  the  debts  contracted  for  the  account  of 
the  community  during  the  same,  the  co-owner  who  contracted  them 
only  is  liable ;  and  he  shall  have  a  right  of  action  against  the  community 
for  the  reimbursement  of  what  he  may  have  paid  for  it. 


470 

If  the  debt  shall  have  been  contracted  by  the  co-owners  collectively, 
without  a  statement  as  to  quota,  all  of  them  are  obligated  to  the  credi- 
tor in  equal  parts,  if  solidarity  shall  not  have  been  stipulated ;  reserving 
the  right  of  each  against  the  others  for  the  payment  of  what  they  may 
have  paid  over  their  rightful  quota. 

21 15,  2120,  1003,  1 58 1,  1583,  2 12 1,  2350  last  par.,  141 5. 

Art.  2326.  Each  co-owner  owes  the  community  what  he  takes  there- 
from, including  the  current  interest  on  the  community  money  which  he 
may  have  used  in  his  private  business,  and  is  liable  to  the  extent  of  a 
slight  fault  for  the  damage  he  may  have  caused  the  common  things  and 
business. 

1804,  21 19. 

Art.  2327.  Each  co-owner  must  contribute  to  the  works  and  repairs 
of  the  community  in  proportion  to  his  quota. 

2113. 

Art.  2328.  The  fruits  of  the  thing  held  in  common  must  be  divided 
among  the  co-owners  in  proportion  to  their  quotas. 

2092,  2094,  1395  No.  3. 

Art.  2329.  In  the  prestations  to  which  the  co-owners  are  bound 
among  themselves,  the  quota  of  the  insolvent  shall  be  a  charge  upon  the 
others. 

21 15  last  par.,  1404  par.  2. 

Art.  2330.  Each  of  those  who  shall  possess  in  common  a  parcel  of 
land  suitable  for  cultivation,  has  the  option  of  being  allotted  for  his 
private  use  a  portion  in  proportion  to  the  quota  of  his  right ;  and  none 
of  the  co-owners  can  disturb  the  others  in  the  portions  which  may  be 
allotted  to  them. 

Art.  2331.  Each  of  those  who  shall  possess  in  common  land  suitable 
for  the  breeding  or  mere  maintenance  of  cattle,  may  maintain  thereon 
a  number  of  animals  in  proportion  to  the  quota  of  his  right. 

Art.  2332.  Each  of  those  who  possess  wooded  land  in  common,  may 
remove  therefrom  the  lumber  and  fire  wood  which  he  may  need  for  his 
own  use ;  but  he  cannot  exploit  it  otherwise,  nor  permit  other  persons  to 
make  use  of  such  wooded  land  without  the  assent  of  all  the  persons 
interested. 

Art.  2333.  When  a  number  of  individuals  have  pasture  lands,  con- 
tiguous to  each  other,  which  cannot  be  divided  by  fences,  and  therefore 
the  cattle  of  one  cannot  be  prevented  from  going  on  the  land  of  another, 


47i 

any  of  the  persons  interested  may  request  the  Judge  to  declare  such 
lands  subject  to  the  rules  governing  lands  held  in  common,  for  the  sole 
purpose  of  the  maintenance  of  the  animals  and  cattle. 

Art.  2334.  In  any  case  one  or  more  of  the  co-owners  may  demand 
that  the  thing  held  in  common  be  divided  or  sold  and  the  proceeds 
divided. 

Division  shall  be  preferred  whenever  land  is  in  question,  and  the  sale 
when  a  dwelling,  wooded  land  or  any  other  thing  which  cannot  be 
divided  or  easily  marked  off  into  portions. 

Art.  2335.  The  division  of  things  held  in  common  and  the  rights  and 
obligations  arising  therefrom,  shall  be  subject  to  the  provisions  of  the 
preceding  articles,  and  in  all  that  is  not  provided  by  the  same,  the  rules 
governing  the  partition  of  an  inheritance  shall  be  observed. 

Art.  2336.  When  one  or  more  of  the  owners  in  common  shall  request 
the  sale  of  the  thing  held  in  common,  the  other  co-owners  or  any  of  them 
may  purchase  the  rights  of  the  petitioners,  paying  them  their  share, 
according  to  the  appraisement  of  the  thing. 

Art.  2337.  When  the  sale  of  a  thing  held  in  common  is  to  be  effected, 
it  shall  be  divided  for  the  purpose  into  lots,  if  one-third  of  the  co-owners 
should  request  it,  provided  that  such  division  shall  facilitate  the  sale 
and  give  probabilities  of  larger  returns. 

Art.  2338.  WTheri  land  held  in  common  is  to  be  divided,  the  Judge 
shall  direct  that  it  be  appraised  by  experts,  and  the  total  value  shall  be 
distributed  among  the  persons  interested  in  proportion  to  their  rights; 
after  which,  a  portion  of  land  of  the  value  which  may  have  fallen  to  him 
shall  be  awarded  each  person  interested,  the  following  rules  being  ob- 
served : 

1.  The  value  of  each  parcel  of  land  shall  be  calculated  according  to 
its  utility  and  not  its  area ;  it  shall  not  be  necessary,  therefore,  to  have 
recourse  to  a  survey,  unless  the  latter  may  serve  to  better  calculate  the 
value. 

2.  If  there  be  dwellings,  cultivation  or  other  improvements  made 
particularly  by  any  of  the  co-owners,  an  endeavor  shall  be  made  to 
award  to  the  latter,  in  so  far  as  possible,  the  portions  upon  which  are 
situated  the  dwellings,  cultivated  sections  or  improvements  belonging 
to  him  without  subdividing  the  portion  of  each. 

3.  If  any  of  the  co-owners  should  request  that  he  be  ad  judicated  the 
lots  in  one  subdivision,  this  shall  be  done,  and 

4.  If  the  persons  interested  shall  not  have  consigned  before  the  begin- 
ning of  the  distribution,  their  respective  quota  towards  the  estimated 
expenses  of  the  operation,  said  quota  shall  be  deducted  from  the  respec- 
tive lots  and  a  portion  of  land  equivalent  thereto  shall  be  separated  for 
the  said  expense. 

Art.  2339.  The  common  channel  of  drainage  of  a  lake  or  swamp, 
which  belongs  to  a  number  of  persons,  or  which  extends  over  their  lands, 


472 

is  a  community  thing  among  them,  and  when  one  or  more  of  the  persons 
interested  shall  desire  to  clean  or  deepen  said  channel,  or  open  a  new  one 
to  better  drain  the  lands,  all  must  contribute  to  the  cost  thereof,  in  pro- 
portion to  the  benefit  accruing  to  them  according  to  the  opinion  of  ex- 
perts, and  should  they  not  do  so,  those  who  execute  the  work  shall  be 
entitled  to  an  indemnity  consisting  of  one-half  the  increased  value  which 
the  lands  of  those  who  may  not  have  contributed  shall  acquire ;  in  order 
to  ascertain  this  increased  value,  the  lands  shall  be  appraised  by  experts, 
before  the  work  is  done. 

Art.  2340.  The  community  terminates : 

1 .  By  the  merger  of  the  shares  of  all  the  co-owners  in  one  and  the  same 
person. 

2.  By  the  destruction  of  the  thing  held  in  common. 

3.  By  the  division  of  the  common  assets. 


473 

TITLE  XXXIV. 

Common  Liability  for  Offenses  and  Faults. 

Art.  2341 .  He  who  shall  have  been  guilty  of  an  offense  or  fault,  which 
has  caused  another  damage,  is  obliged  to  repair  it,  without  prejudice  to 
the  principal  penalty  which  the  law  imposes  for  the  fault  or  offense  com- 
mitted. 

Art.  2342.  This  indemnity  may  be  demanded  not  only  by  him  who  is 
the  owner  or  possessor  of  the  thing  which  has  suffered  the  damage  or  by 
his  heir,  but  also  by  the  usufructuary,  the  person  having  the  habitation, 
or  the  user,  if  the  damage  be  prejudicial  to  his  right  of  usufruct,  habita- 
tion or  use.  It  may  also  be  requested  in  other  cases,  by  him  who  has  the 
thing  under  his  responsibility ;  but  only  in  the  absence  of  the  owner. 

978,  iq$8,  670,  870,  2278,  2418. 

Art.  2343.  He  who  caused  the  damage  and  his  heirs  are  obliged  to 
pay  the  indemnity. 

He  who  shall  profit  through  the  fraud  of  another,  without  having 
participated  therein,  is  obligated  only  to  the  extent  of  the  value  of  the 
benefit  he  may  have  derived. 

1411,  1580,  1515  par.  2. 

Art.  2344.  If  an  offense  or  fault  shall  have  been  committed  by  two  or 
more  persons,  each  of  them  shall  be  solidarity  liable  for  any  damage 
arising  from  said  offense  or  fault,  with  the  exceptions  of  articles  2350  and 

2355- 

Any  fraud  or  deceit  committed  by  two  or  more  persons  produces  the 
solidary  action  of  the  preceding  paragraph. 

938,  1568  par.  2,  1580. 

Art.  2345.  An  intoxicated  person  is  liable  for  the  damage  caused 
through  his  offense  or  fault. 

Art.  2346.  Those  under  ten  years  of  age  and  the  insane  are  not  capable 
of  committing  an  offense  or  fault ;  but  the  persons  under  whose  charge 
said  minors  or  insane  persons  may  be,  shall  be  responsible  for  the  dam- 
ages caused  by  them,  if  they  can  be  charged  with  negligence. 

1999,  1738. 

Art.  2347.  Every  person  is  liable  not  only  for  his  own  acts  for  the 
purpose  of  the  indemnity  of  damage,  but  also  for  the  acts  of  those  who 
mav  be  under  his  care. 


474 

Thus,  the  father,  and  in  the  absence  of  the  latter,  the  mother,  is  respon- 
sible for  the  act  of  the  minor  children  living  in  the  same  house. 

Thus,  the  tutor  or  curator  is  responsible  for  the  conduct  of  the  ward 
who  lives  under  his  dependency  and  care. 

Thus,  the  husband  is  responsible  for  the  conduct  of  his  wife. 

Thus,  the  directors  of  colleges  and  schools  answer  for  the  acts  of  their 
pupils  while  they  are  under  their  care,  and  artisans  and  contractors,  for 
the  acts  of  their  apprentices  or  employees,  in  the  same  case. 

But  the  liability  of  such  persons  shall  cease,  if  with  the  authority 
and  the  care  which  their  respective  quality  confers  upon  them  and  pre- 
scribes, they  should  not  have  been  able  to  prevent  the  act. 

1738,  1999,  2°75,  181  par.  2. 

Art.  2348.  Parents  shall  always  be  responsible  for  the  damage  caused 
by  the  fault  or  offenses  committed  by  their  minor  children,  and  which 
are  clearly  due  to  bad  education,  or  to  vicious  habits  w];iich  they  have 
permitted  them  to  acquire. 

Art.  2349.  Masters  shall  be  responsible  for  the  damage  caused  by 
their  domestics  or  servants,  on  the  occasion  of  a  service  rendered  by  the 
latter  to  the  former ;  but  they  shall  not  be  responsible  if  it  be  proved  or 
appear  that  on  such  occasion  the  domestics  or  servants  conducted  them- 
selves in  an  improper  manner,  which  the  masters  had  no  means  to  fore- 
see or  prevent  by  the  employment  of  ordinary  care  and  the  competent 
authority ;  in  such  case  all  responsibility  for  the  damage  shall  fall  upon 
said  domestics  or  servants. 

Art.  2350.  The  owner  of  a  building  is  liable  for  the  damage  caused  by 
its  collapse,  due  to  the  omission  of  the  necessary  repairs,  or  through  hav- 
ing otherwise  failed  to  observe  the  care  of  a  good  father  of  a  family. 

There  shall  be  no  liability  if  the  collapse  should  be  due  to  a  fortuitous 
event,  such  as  a  flood,  lightning,  or  earthquake. 

If  the  building  should  belong  to  two  or  more  persons  pro  indiviso,  the 
indemnity  shall  be  divided  among  them,  in  proportion  to  their  quotas 
in  the  ownership. 

1003,  64. 

Art.  2351.  If  the  damage  caused  by  the  collapse  of  a  building  should 
be  due  to  a  defect  in  construction,  the  liability  prescribed  in  rule  3  of 
article  2060  shall  lie. 

Art.  2352.  The  persons  bound  to  repair  the  damage  caused  by  those 
under  their  dependency,  shall  have  the  right  to  recover  upon  the  prop- 
erty of  the  latter,  if  there  be  any,  and  if  he  who  shall  have  caused  the 
damage  did  so  without  any  order  from  the  person  to  whom  he  owed 
obedience,  and  was  capable  of  committing  the  offense  or  fault,  according 
to  article  2346. 


475 

Art.  2353.  The  owner  of  an  animal  is  responsible  for  the  damage 
caused  by  said  animal,  even  after  the  animal  shall  have  been  turned 
loose  or  strayed,  unless  the  turning  loose,  straying  or  damage  cannot  be 
charged  to  the  fault  of  the  owner  or  of  the  employee,  charged  with  the 
care  or  service  of  the  animal. 

What  is  said  of  the  owner  applies  to  any  person  using  an  animal  belong- 
ing to  another;  reserving  his  action  against  the  owner  if  the  damage 
shall  have  been  due  to  a  quality  or  vice  of  the  animal,  which  the  owner, 
with  average  care  or  prudence,  should  have  known  or  foreseen,  and  of 
which  he  did  not  inform  him. 

Art.  2354.  The  damage  caused  by  a  wild  animal,  which  is  not  useful 
in  the  care  or  service  of  a  tenement,  shall  always  be  imputable  to  the 
one  who  has  it ;  and  if  he  should  plead  that  it  was  not  possible  for  him 
to  avoid  the  danger,  he  shall  not  be  heard. 

Art.  2355.  The  damage  caused  by  a  thing  which  falls  or  is  thrown 
from  the  upper  part  of  a  building,  is  imputable  to  all  the  persons  occupy- 
ing the  same  part  of  the  building,  and  the  indemnity  shall  be  divided 
among  all  of  them,  unless  it  be  proved  that  the  act  was  due  to  the  fault 
or  evil  intentions  of  one  person  exclusively,  in  which  case  such  person 
only  shall  be  responsible. 

If  there  should  be  anything  which  from  the  upper  part  of  a  building, 
or  any  other  high  location,  is  threatening  to  fall  or  cause  damage,  the 
owner  of  the  building  or  of  the  place,  or  its  tenant,  or  the  person  to  whom 
the  thing  may  belong,  or  who  may  make  use  thereof,  may  be  obliged  to 
remove  it,  and  any  resident  shall  have  the  right  to  demand  such  removal. 

1590  par.  2,  988  et  seq. 

Art.  2356.  As  a  general  rule,  any  damage  which  may  be  imputable 
to  malice  or  negligence  on  the  part  of  another  person,  must  be  repaired 
by  such  person. 

The  following  are  especially  obliged  to  this  repair : 

\ .  He  who  shall  imprudently  discharge  a  firearm. 

2.  He  who  shall  remove  the  covering  from  a  ditch  or  drain,  or  shall 
uncover  them  in  a  street  or  road,  without  the  precautions  necessary  to 
prevent  persons  passing  thereby  from  falling. 

3.  He  who  being  obliged  to  construct  or  repair  an  aqueduct  or  drain, 
which  crosses  a  road,  shall  keep  it  in  a  state  to  cause  damage  to  those 
passing  along  the  road. 

Art.  2357.  The  measure  of  damages  is  subject  to  reduction  if  he  who 
suffered  it  shall  have  exposed  himself  thereto  imprudently. 

Art.  2358.  The  actions  for  the  repair  of  the  damage  arising  from  an 
offense  or  fault,  which  may  be  brought  against  those  who  may  be  pun- 
ishable for  the  offense  or  fault,  prescribe  within  the  terms  fixed  in  the 
Penal  Code  for  the  prescription  of  the  principal  penalty. 


476 

The  actions  for  the  repair  of  the  damage  which  can  be  exercised 
against  third  responsible  persons,  in  accordance  with  the  provisions  of 
this  chapter,  prescribe  in  three  years  from  the  date  of  the  perpetration 
of  the  act. 

Art.  2359.  As  a  general  rule,  a  right  of  action  exists  in  all  cases  of 
contingent  damage,  which  shall  threaten  indeterminate  persons  through 
the  imprudence  or  negligence  of  some  one;  but  if  the  damage  should 
threaten  determinate  persons  only,  the  latter  only  can  bring  the  action. 

1005. 

Art.  2360.  If  the  popular  actions  to  which  the  preceding  articles  give 
a  right,  be  declared  well  taken,  the  plaintiff  shall  be  indemnified  for  all 
the  costs  of  the  action,  and  he  shall  be  paid  the  value  of  the  time  and 
the  diligence  employed  therein,  without  prejudice  to  the  specific  remu- 
neration which  the  law  may  grant  in  certain  cases. 

1005. 


477 


TITLE  XXXV. 
Ol"  Suretyship.* 

Chapter  i. 
Of  the  Constitution  and  Requisites  of  Suretyship. 

Art.  2361.  Suretyship  is  an  accessory  obligation,  by  virtue  of  which 
one  or  more  persons  answer  for  the  obligation  of  another,  binding  them- 
selves to  the  creditor  to  perform  it  in  whole  or  in  part,  if  the  principal 
debtor  fails  to  perform  it. 

The  suretyship  may  be  constituted  not  only  in  favor  of  the  principal 
debtor,  but  of  another  surety. 

65,  2410,  2383,  2384. 

Art.  2362.  Suretyship  may  be  conventional,  legal  or  judicial. 

The  first  is  constituted  by  a  contract,  the  second  is  ordered  by  the 
law,  and  the  third  by  a  decree  of  a  Judge. 

Legal  and  judicial  suretyship  are  subject  to  the  same  rules  as  conven- 
tional suretyship,  unless  the  law  requiring  it  or  the  Judicial  Code  shall 
dispose  otherwise. 

Art.  2363.  The  person  obliged  to  furnish  security  cannot  substitute 
therefor  a  mortgage  or  pledge,  or  vice  versa,  against  the  will  of  the 
creditor. 

If  the  security  be  required  by  the  law  or  a  decree  of  the  Judge,  a  suffi- 
cient pledge  or  mortgage  may  be  substituted  therefor. 

466,  605. 

Art.  2364.  The  obligation  to  which  the  security  is  accessory  may 
be  civil  or  natural. 

1504  par.  2,  1527  et  seq. 

Art.  2365.  Not  only  a  pure  and  simple  obligation,  but  a  conditional 
and  limited  one  may  be  the  subject  of  suretyship. 

A  future  obligation  may  also  be  secured ;  in  such  case  the  surety  may 
withdraw  as  long  as  the  principal  obligation  does  not  exist,  but  shall 
remain,  nevertheless,  responsible  to  the  creditors  and  third  persons  in 
good  faith,  as  the  principal  in  a  mandate  in  the  case  of  article  2199. 

2385  last  par. 
*  See  La.  Civil  Code,  arts.  3035  [3004]  to  3044  [3013]. 


478 

Art.  2366.  The  security  may  be  executed  to  or  from  a  certain  day 
or  under  a  suspensive  or  resolutory  condition. 

Art.  2367.  The  surety  may  agree  with  the  debtor  upon  a  pecuniary 
remuneration  for  the  service  which  he  renders  him. 

Art.  2368.  Any  person  may  bind  himself  as  surety  for  another,  with 
the  following  exceptions : 

1.  Minors. 

2.  The  violently  insane,  prodigals,  deaf-mutes,,  and  imbeciles. 

3.  Married  women. 

493)  J502>  180  et  scq.,  1805  ct  seq. 

Art.  2369.  A  surety  cannot  bind  himself  to  more  than  what  the 
principal  debtor  owes,  but  he  may  bind  himself  to  less. 

He  may  bind  himself  to  pay  a  sum  of  money  in  place  of  another  thing 
of  equal  or  greater  value. 

By  securing  the  act  of  another,  there  is  secured  only  the  indemnity  to 
be  recovered  in  the  event  of  the  non-performance  of  the  act. 

The  obligation  to  pay  a  thing  which  is  not  money  in  the  place  of 
another  thing,  or  of  a  sum  of  money,  does  not  constitute  security. 

Art.  2370.  The  surety  cannot  bind  himself  under  more  onerous  terms 
than  the  principal  debtor,  neither  with  regard  to  the  amount,  nor  with 
regard  to  time,  place,  the  condition  or  mode  of  payment,  or  the  penalty 
imposed  for  the  non-performance  of  the  contract  to  which  the  security 
is  accessory,  but  he  may  bind  himself  under  less  onerous  terms. 

He  may,  nevertheless,  bind  himself  in  a  more  efficient  manner,  for 
example,  by  mortgage,  even  though  the  principal  obligation  should  not 
involve  one. 

The  security  which  is  excessive  under  any  of  the  respects  mentioned 
in  the  first  paragraph,  must  be  reduced  to  the  terms  of  the  principal 
obligation. 

In  case  of  doubt,  the  most  favorable  interpretation  for  the  agreement 
of  the  principal  and  accessory  obligations  shall  be  accepted. 

Art.  2371.  .Suretyship  may  be  given  without  an  order  and  even  with- 
out notice,  and  against  the  will  of  the  principal  debtor. 

1631,  1632,  2394  No.  5  par!  2. 

Art.  2372.  Surety  may  be  given  for  a  juristic  person  and  a  vacant 
inheritance. 

Art.  2373.  Suretyship  is  not  presumed,  nor  must  it  be  extended  to 
more  than  the  tenor  of  what  is  expressed ;  but  it  is  supposed  to  comprise 
all  the  accessories  of  the  debt,  such  as  the  interest,  the  judicial  costs  of 
the  first  demand  made  on  the  principal  debtor,  those  of  the  intimation 
made  in  consequence  to  the  surety,  and  all  those  subsequent  to  such 


479 

intimation ;  but  not  those  caused  during  the  time  intervening  between 
the  first  demand  and  the  aforesaid  intimation.* 

1450,  1603,  1629,  2160,  2386. 

Art.  2374.  The  following  are  obliged  to  furnish  security  on  the  peti- 
tion of  the  creditor: 

1 .  The  debtor  who  may  have  stipulated  it. 

2.  The  debtor  whose  means  diminish  in  such  manner  as  to  manifestly 
endanger  the  fulfillment  of  his  obligation. 

3.  The  debtor  regarding  whom  there  is  fear  that  he  will  absent  him- 
self from  the  Territory,  with  the  intention  of  establishing  himself  else- 
where, provided  he  does  not  leave  sufficient  property  for  the  security  of 
his  obligations. 

1553,  2394,  1882  last  par. 

Art.  2375.  Whenever  the  surety  given  by  the  debtor  should  become 
insolvent,  the  debtor  shall  be  obliged  to  furnish  new  security. 

1553,  2416,  2451,  2385  last  par. 

Art.  2376.  He  who  is  obliged  to  give  security  must  furnish  a  surety 
capable  of  binding  himself  as  such ;  having  property  more  than  sufficient 
to  cover  the  same,  and  who  may  be  domiciled  or  shall  select  a  domicile 
in  some  State  or  Territory  of  the  Union. 

In  order  to  qualify  the  sufficiency  of  the  property,  there  shall  be  taken 
into  consideration  only  the  immovables,  excepting  in  commercial  matters, 
or  when  the  debt  secured  is  a  moderate  one. 

But  there  shall  not  be  taken  into  consideration  the  attached  or  liti- 
gious immovables,  or  those  which  are  not  situated  in  the  Territory,  or 
which  may  be  subject  to  onerous  mortgages  or  to  resolutory  conditions. 

If  the  debtorf  should  be  so  in  debt  as  to  endanger  even  the  immovables 
not  subject  to  mortgages  in  favor  of  such  debts,  neither  shall  the  latter 
be  taken  into  consideration. 

2385- 

1 
Art.  2377.  The  surety  is  responsible  to  the  extent  of  an  ordinary 

fault  as  to  all  the  prestations  to  which  he  may  be  bound. 

Art.  2378.  The  rights  and  obligations  of  the  sureties  are  transmissible 
to  their  heirs. 

*  Intimation:  A  notification  to  a  party  that  some  step  in  a  legal  proceeding  is 
1  or  will  be  taken.  Particularly,  u  notice  given  by  the  party  taking  an  appeal, 
to  the  other  party,  that  the  court  above  will  hear  the  appeal.  (Black's  Law 
Dictionary.) 

t  The  Code  of  Cundinainarca  properly  says:  "If  the  surety  should  be  so  in  debt 


480 

Chapter  2. 

Of  the  Effects  of  Suretyship  Between  the  Creditor  and  the  Surety. 

Art.  2379.  The  surety  may  make  the  payment  of  the  debt  even  before 
being  reconvened  by  the  creditor,  in  all  cases  in  which  the  principal 
debtor  could  do  so. 

1554,  2229,  2398. 

Art.  2380.  The  surety  may  oppose  to  the  creditor  any  real  exceptions, 
such  as  fraud,  violence  or  res  judicata;  but  not  the  personal  ones  of  the 
debtor,  such  as  his  incapacity  to  bind  himself,  cession  of  property,  or  the 
right  which  he  may  have  not  to  be  deprived  of  necessaries  for  subsistence. 

Real  exceptions  are  those  inherent  to  the  principal  obligation. 

2516,  1577,  1504  par.  2,  1682,  1964,  2404,  2364,  1684,  1685. 

Art.  2381.  When  the  creditor  shall  have  placed  the  surety  in  a  posi- 
tion of  not  being  able  to  subrogate  himself  in  his  actions  against  the 
principal  debtor  or  against  the  co-sureties,  the  surety  shall  have  the 
right  to  have  deducted  from  the  demand  of  the  creditor  all  that  said 
surety  might  have  been  able  to  obtain  from  the  principal  debtor  or 
from  the  co-sureties  by  means  of  legal  subrogation. 

2390,  2406  No.  2,  1708. 

Art.  2382.  Even  though  the  surety  be  not  reconvened,  he  may  have 
notice  served  upon  the  creditor,  after  the  debt  shall  be  demandable,  to 
institute  proceedings  against  the  principal  debtor;  and  if  the  creditor 
after  such  notice  should  delay  doing  so,  .the  surety  shall  not  be  re- 
sponsible by  reason  of  the  insolvency  of  the  principal  debtor  occurring 
during  the  delay. 

Art.  2383.  The  surety  reconvened,  enjoys  the  benefit  of  discussion 
(beneficio  de  excusiori)*,  by  virtue  of  which  he  may  demand  that  before 
proceeding  against  him,  the  debt  be  recovered  from  the  property  of 
the  principal  debtor  and  the  mortgages  or  pledges  given  by  the  latter 
for  the  security  of  the  same  debt. 

2454  last  par. 

Art.  2384.  In  order  to  enjoy  the  benefit  of  discussion,  the  following 
conditions  are  necessary : 

1.  That  it  shall  not  have  been  expressly  renounced. 

2.  That  the  surety  shall  not  have  bound  himself  as  a  debtor  in  solidum. 

3.  That  the  principal  obligation  produces  a  right  of  action. 

4.  That  the  security  shall  not  have  been  ordered  by  the  Judge. 

*  See  La  Civil  Code,  arts.  3045  [3014]  to  3048  [3017]  and  3051  [3020]. 


48 1 

5.  That  the  benefit  be  pleaded  as  soon  as  the  surety  is  notified,  unless 
the  debtor,  at  the  time  of  the  notice,  shall  not  have  property,  but  acquires 
it  later. 

6.  That  the  property  of  the  principal  debtor  be  pointed  out  to  the 
creditor. 

2361,  1568  last  par.,  1504,  1527  par.  3. 

Art.  2385.  There  shall  not  be  taken  into  consideration  for  the  dis- 
cussion : 

1.  The  property  situated  without  the  Territory  or  domicile  of  the 
debtor. 

2.  Attached  or  litigious  property,  or  credits  of  doubtful  or  difficult 
collection. 

3.  Property  the  ownership  of  which  is  subject  to  a  resolutory  con- 
dition. 

4.  Property  mortgaged  in  favor  of  preferred  debts  in  that  part  which 
may  appear  necessary  for  the  full  payment  of  the  latter. 

By  the  renunciation  of  the  principal  surety,  the  renunciation  of  the 
sub-surety  shall  not  be  presumed. 

2376,  2365,  2391. 

Art.  2386.  The  creditor  shall  have  the  right  that  the  surety  advance 
him  the  costs  of  the  discussion. 

The  Judge,  in  a  necessary  case,  shall  fix  the  amount  of  the  advance, 
and  shall  appoint  the  person  to  whose  possession  it  shall  be  consigned, 
who  may  be  the  creditor  himself. 

If  the  surety  should  prefer  to  carry  out  the  discussion  himself,  within 
a  reasonable  term,  he  shall  be  heard. 

Art.  2387.  When  several  principal  debtors  shall  have  bound  them- 
selves solidarily,  and  one  of  them  shall  have  given  security,  the  surety 
reconvened  shall  be  entitled  not  only  to  the  discussion  of  the  property  of 
such  debtor,  but  also  to  that  of  his  co-debtors. 

Art.  2388.  The  benefit  of  discussion  may  be  pleaded  once  only. 

If  the  discussion  of  the  property  pointed  out  once  by  the  surety  should 
not  produce  any  effect,  or  not  be  sufficient,  he  cannot  point  out  other 
property ;  unless  it  shall  have  been  subsequently  acquired  by  the  princi- 
pal debtor. 

2384  No.  5. 

Art.  2389.  If  the  property  discussed  should  not  produce  more  than  a 
partial  payment  of  the  debt,  the  creditor  shall  nevertheless  be  obliged  to 
accept  it,  and  cannot  reconvene  the  surety  except  for  the  unpaid  portion. 

Art.  2390.  If  the  creditor  be  guilty  of  omission  or  negligence  in  the 
discussion,  and  the  debtor  in  the  meantime  becomes  insolvent,  the 


482 

surety  shall  be  liable  only  to  the  amount  exceeding  the  value  of  the 
property  which  he  may  have  pointed  out  for  discussion, 

If  the  surety,  expressly  and  unequivocally,  should  have  bound  him- 
self to  pay  only  the  amount  the  creditor  should  fail  to  obtain  from  the 
debtor,  it  shall  be  understood  that  the  creditor  is  bound  to  the  discus- 
sion, and  the  surety  shall  not  be  responsible  for  the  insolvency  of  the 
debtor,  if  the  following  conditions  are  attendant : 

1.  That  the  creditor  shall  have  had  means  sufficient  to  enforce  pay- 
ment. 

2.  That  he  shall  have  been  negligent  in  availing  himself  thereof. 

2382. 

Art.  2391.  The  sub-surety  enjoys  the  benefit  of  discussion,  with 
regard  to  the  surety  as  well  as  the  principal  debtor. 

2365  par.  2,  2405. 

Art.  2392.  If  there  should  be  two  or  more  sureties  of  the  same  debt, 
who  shall  not  have  bound  themselves  in  solidum  for  the  payment,  the 
debt  shall  be  understood  as  divided  among  them,  in  equal  parts,  and  the 
creditor  can  demand  of  none  more  than  his  respective  quota. 

The  insolvency  of  one  surety  shall  be  a  charge  upon  the  co-sureties ;  but 
a  surety  shall  not  be  considered  as  insolvent,  when  his  sub-surety  is  not. 

A  surety  who  shall  have  unequivocally  limited  his  liability  to  a  deter- 
minate sum  or  quota,  shall  not  be  liable  beyond  said  sum  or  quota. 

1568  par.  2,  2405. 

Art.  2393.  The  division  prescribed  in  the  preceding  article  shall  take 
place  among  the  sureties  of  the  same  debtor,  and  for  the  same  debt,  even 
though  the  securities  shall  have  been  given  separately. 


Chapter  3. 

Of  the  Effects  of  the  Suretyship  Between  the  Surety  and  the  Debtor. 

Art.  2394.  The  surety  shall  have  the  right  to  be  relieved  by  the  princi- 
pal debtor,  or  that  the  latter  give  him  a  bond  for  the  results  of  the  secur- 
ity, or  consign  means  of  payment  in  the  following  cases : 

1.  When  the  principal  debtor  shall  dissipate  or  recklessly  risk  his 
property. 

2.  When  the  principal  debtor  shall  have  bound  himself  to  obtain  the 
relief  of  the  security  within  a  certain  term,  and  such  term  shall  have 
expired. 

3.  When  the  term  or  the  condition  making  the  principal  obligation 
immediately  demandable  in  whole  or  in  part  shall  have  arrived. 


483 

4-  If  ten  years  shall  have  elapsed  since  the  execution  of  the  security ; 
unless  the  principal  obligation  shall  have  been  contracted  for  a  longer 
determinate  period  or  is  of  those  which  are  not  subject  to  extinguish- 
ment in  a  determinate  period,  as  that  of  tutors  and  curators,  that  of  the 
usufructuary,  that  of  a  life  annuity,  that  of  the  employees  in  the  collec- 
tion or  administration  of  public  revenues. 

5.  If  there  be  good  reason  to  fear  that  the  principal  debtor  may 
abscond,  not  leaving  sufficient  real  property  for  the  payment  of  the  debt. 

The  rights  herein  granted  the  surety  do  not  extend  to  him  who  shall 
have  furnished  the  security  against  the  will  of  the  debtor. 

65,  2374,  1632,  2371. 

Art.  2395.  The  surety  shall  have  a  right  of  action  against  the  princi- 
pal debtor,  for  the  reimbursement  of  what  may  have  been  paid  by  him 
with  interest  and  costs,  even  though  the  suretyship  shall  have  been  un- 
known to  the  debtor. 

He  shall  also  be  entitled  to  the  recovery  of  damages,  according  to  the 
general  rules. 

But  he  cannot  demand  the  reimbursement  of  the  unconsidered  costs, 
nor  those  incurred  before  notice  shall  have  been  served  upon  the  princi- 
pal debtor  of  the  suit  brought  against  said  surety. 


[617  No.  3,  2235,  2308,  2309,  1631,  1668  No.  3. 


Art.  2396.  When  the  security  shall  have  been  given  by  direction  of  a 
third  person,  the  surety  who  shall  have  paid  shall  have  a  right  of  action 
against  the  person  so  directing ;  without  prejudice  to  that  which  may  lie 
against  the  principal  debtor. 

2184  Nos.  2  and  5. 

Art.  2397.  Should  there  be  many  principal  and  solidary  debtors,  he 
who  shall  have  furnished  security  for  all  may  sue  each  of  them  for  the 
total  amount  of  the  debt,  according  to  the  terms  of  article  2395 ;  but  the 
special  surety  of  one  of  them  may  sue  him  only  for  the  entire  amount ; 
and  shall  have  against  the  others  only  the  rights  of  action  corres- 
ponding to  him,  as  subrogated  in  those  of  the  debtor  whom  he  may  have 
secured. 

1571,  1668,  2312. 

Art.  2398.  A  surety  who  shall  have  paid  before  the  expiration  of  tne 
term  of  the  principal  obligation,  cannot  reconvene  the  debtor,  until  after 
the  expiration  of  the  term. 

2379,  1709. 


484 

Art.  2399.  The  surety,  whose  debt  may  have  been  remitted  in  whole 
or  in  part  by  the  creditor,  cannot  sue  the  debtor  for  the  amount  remitted, 
unless  the  creditor  shall  have  assigned  him  his  right  of  action  for  the 
purpose. 

Art.  2400.  The  actions  granted  by  article  2395,  shall  not  lie  in  the 
following  cases : 

1 .  When  the  obligation  of  the  principal  debtor  is  a  purely  natural  one, 
and  shall  not  have  been  validated  by  ratification  or  the  lapse  of  time. 

2.  When  the  surety  bound  himself  against  the  will  of  the  principal 
debtor;  except  in  so  far  as  the  debt  may  have  been  extinguished,  and 
without  prejudice  to  the  right  of  the  surety  to  sue  the  proper  persons, 
according  to  the  general  rules. 

3.  When  by  reason  of  the  payment  of  the  surety  not  having  been 
valid,  the  debt  has  not  been  extinguished. 

1527,  1632,  2309. 

Art.  2401.  The  debtor  who  shall  have  paid  without  advising  the 
surety,  shall  be  liable  to  the  latter  for  what,  not  knowing  of  the  extinc- 
tion of  the  debt,  he  may  again  pay ;  but  he  shall  have  a  right  of  action 
against  the  creditor  for  the  recovery  of  the  improper  payment. 

2313- 

Art.  2402.  If  the  surety  shall  have  paid  without  advising  the  debtor, 
the  latter  may  oppose  to  him  all  the  exceptions  of  which  the  said  debtor 
could  have  availed  himself  against  the  creditor  at  the  time  of  the  pay- 
ment. 

If  the  debtor,  not  being  aware  of  the  extinction  of  the  debt  by  reason 
of  failure  to  receive  notice,  should  pay  it  again,  the  surety  shall  have  no 
remedy  against  him,  but  he  may  bring  against  the  creditor  the  action 
of  the  debtor  for  the  improper  payment. 


Chapter  4. 

Of  the  Effects  of  the  Surety  Among  the  Co-Sureties. 

Art.  2403.  A  surety  who  pays  more  than  his  corresponding  share,  is 
subrogated  as  to  the  excess  in  the  rights  of  the  creditor  against  the  co- 
sureties. 

1668. 

Art.  2404.  The  co-sureties  cannot  oppose  to  the  person  who  has  paid, 
the  purely  personal  exceptions  of  the  principal  debtor. 


4«5 

Nor  can  they  oppose  to  the  co-surety  who  has  paid,  the  purely  personal 
exceptions  corresponding  to  the  latter  against  the  creditor,  and  of  which 
he  did  not  wish  to  avail  himself. 

2380. 

Art.  2405.  The  sub-surety,  in  the  event  of  the  insolvency  of  the 
surety  in  whose  favor  he  bound  himself,  is  liable  for  the  obligations  of 
the  latter  to  the  other  sureties. 

2391,  2392. 

Chapter  5. 

Of  the  Extinction  of  Suretyship.  ' 

Art.  2406.  The  suretyship  is  extinguished  in  whole  or  in  part,  in  the 
same  terms  as  other  obligations,  according  to  the  general  rules,  and  in 
addition : 

1.  By  the  discharge  of  the  security  in  whole  or  in  part,  granted  by 
the  creditor  to  the  surety. 

2.  In  so  far  as  the  creditor  by  his  own  act  or  fault  shall  have  lost  the 
rights  of  action  in  which  the  surety  had  the  right  to  be  subrogated. 

3.  By  the  extinction  of  the  principal  obligation  in  whole  or  in  part. 

1576,  1704,  1708,  2381. 

Art.  2407.  If  the  creditor  shall  voluntarily  accept  of  the  principal 
debtor,  in  discharge  of  the  debt,  an  object  distinct  from  that  which  said 
debtor  was  obliged  to  give  him  in  payment,  the  surety  is  irrevocably 
extinguished,  even  though  subsequently  eviction  of  the  object  should 
occur. 

1627,  1687. 

Art.  2408.  The  surety  is  extinguished  by  the  confusion  of  the  quali- 
ties of  creditor  and  surety,  or  of  debtor  and  surety;  but  in  the  latter 
case  the  obligation  of  the  sub-surety  shall  subsist. 

1724,  2431  par.  2. 


486 

TITLE  XXXVI. 

Of  the  Contract  of  Pledge. 

Art.  2409.   By  the  contract  of  pawn  or  pledge  a  movable  is  delivered 
to  a  creditor  for  the  security  of  his  credit. 
The  thing  delivered  is  called  pledge. 
The  creditor  who  holds  it  is  called  pledgee. 

2497  No.  3,  786,  2432. 

Art.  2410.  The  contract  of  pledge  always  supposes  a  principal  obliga- 
tion to  which  it  is  accessory. 

65,  2361. 

Art.  241  i.  This  contract  is  perfected  only  by  the  delivery  of  the 
pledge  to  the  creditor. 

754- 

Art.  2412.  A  thing  can  be  pledged  only  by  the  person  who  has  the 
power  to  alienate  it. 

1521,  1871,  2158,  2169,  2439. 

Art.  2413.  The  pledge  may  be  constituted  not  only  by  the  debtor, 
but  by  any  third  person  who  renders  this  service  to  the  debtor. 

2439  par.  2. 

Art.  2414.  A  credit  may  be  given  in  pledge,  by  delivering  the  title, 
but  it  shall  be  necessary  that  the  creditor  notify  thereof  the  debtor  of 
the  credit  appearing  in  the  title,  forbidding  him  from  paying  it  into  other 
hands. 

i960,  1961.     33  of  law  57  of  1887. 

Art.  2415.  If  the  pledge  does  not  belong  to  the  person  giving  it,  but 
to  a  third  person  who  has  not  consented  to  the  pledge,  the  contract  shall 
nevertheless  subsist  as  long  as  the  owner  does  not  reclaim  it ;  unless  the 
creditor  shall  know  that  it  was  stolen,  or  taken  by  force  or  lost,  in  which 
case  the  provisions  of  article  2208  shall  be  applied  to  the  pledge. 

1871,  1874. 

Art.  2416.  If  the  owner  shall  demand  the  thing  pledged  without  his 
consent,  and  restitution  should  be  made,  the  creditor  may  demand  that 


487 

another  pledge  of  the  same  or  of  a  greater  value  be  given  him,  or  that 
other  sufficient  security  be  furnished;  and  in  the  absence  of  either, 
that  the  principal  obligation  be  performed  at  once,  even  though  a 
period  for  the  payment  may  still  be  pending. 

2375,  2431  last  par.,  1484,  1553,  65. 

Art.  2417.  Nothing  whatsoever  can  be  taken  from  the  debtor  against 
his  will  to  serve  as  a  pledge,  excepting  by  the  operation  of  law. 

Nothing  belonging  to  the  debtor  can  be  retained  as  security  for  the 
debt,  without  his  consent;  excepting  in  the  cases  expressly  prescribed 
by  law. 

970,  859,  1995,  2000  par.  2,  2188,  2218,  2258,  2277,  2429. 

Art.  2418.  If  the  creditor  lose  the  seizin  of  the  pledge,  he  shall  have  a 
right  of  action  for  its  recovery  against  any  person  in  whose  possession  it 
may  be,  without  excepting  the  debtor  who  has  constituted  it. 

But  the  debtor  may  retain  the  pledge  upon  paying  in  full  the  debt, 
for  the  security  of  which  it  was  constituted. 

Upon  this  payment  being  made,  the  creditor  cannot  demand  it  under 
the  plea  of  other  credits,  even  though  they  shall  have  the  requisites 
enumerated  in  article  2426. 

775,  786,  665,  950,  2342,  2429. 

Art.  2419.  The  creditor  is  obliged  to  keep  and  preserve  the  thing  as 
a  good  father  of  a  family,  and  is  responsible  for  the  deterioration  the 
pledge  may  have  suffered  through  his  act  or  fault. 

63  par.  4. 

Art.  2420.  The  creditor  cannot  make  use  of  the  pledge  without  the 
consent  of  the  debtor.  In  this  respect  his  obligations  are  the  same  as 
those  of  a  mere  depositary. 

2245. 

Art.  2421.  The  debtor  cannot  demand  the  restitution  of  the  pledge 
in  whole  or  in  part,  until  he  shall  have  paid  the  debt  in  full,  both  prin- 
cipal and  interest,  as  well  as  the  necessary  expenses  which  the  creditor 
may  have  incurred  for  the  preservation  of  the  thing,  and  the  prejudices 
which  the  seizin  may  have  caused  him. 

Nevertheless,  if  the  debtor  should  request  that  he  be  permitted  to 
replace  the  pledge  by  another,  without  prejudice  to  the  creditor,  he  shall 
be  heard. 


488 

And  if  the  creditor  should  abuse  thereof,  he  shall  lose  his  right  of 
pledge,  and  the  debtor  may  demand  the  immediate  return  of  the  thing 
pledged. 

2258,  1603,  1546. 

Art.  2422.  The  pledgee  shall  have  the  right  to  demand  that  the 
pledge  of  a  debtor  in  default  be  sold  at  public  auction,  in  order  that  he 
may  be  paid  from  the  proceeds  of  the  sale ;  or  that,  in  the  absence  of  an 
acceptable  bid,  it  be  appraised  by  experts  and  adjudicated  to  him 
in  payment,  to  the  extent  of  his  credit ;  without  any  stipulation  to  the 
contrary  being  valid,  and  without  prejudice  to  his  right  to  recover  the 
principal  obligation  by  other  methods. 

Nor  can  it  be  stipulated  that  the  creditor  shall  have  the  power  to  dis- 
pose of  the  pledge,  or  to  appropriate  it  to  himself  by  other  means  than 
those  herein  pointed  out. 

Art.  2423.  Both  the  creditor  and  the  debtor  may  be  admitted  at  the 
auction  of  the  pledge  at  public  sale. 

Art.  2424.  Until  the  sale  shall  have  been  consummated  and  the  adjudi- 
cation* made  as  prescribed  in  article  2422,  the  debtor  may  pay  the  debt, 
provided  the  payment  be  in  full,  and  there  be  included  therein  the  ex- 
penses which  the  sale  or  the  award  may  already  have  occasioned. 

2450. 

Art.  2425.  If  the  value  of  the  thing  pledged  shall  not  exceed  one 
hundred  and  fifty  pesos,  the  Judge  may,  on  the  petition  of  the  creditor, 
adjudicate  it  to  him  at  its  appraised  value,  without  the  sale  thereof  being 
held. 

Art.  2426.  The  credit  having  been  discharged  in  all  its  parts,  the 
pledge  must  be  returned. 

But  the  creditor  may  retain  it  if  he  shall  have  other  credits  against 
the  same  debtor,  provided  the  following  requisites  are  present : 

1.  That  they  be  certain  and  liquidated. 

2.  That  they  shall  have  been  contracted  after  the  obligation  for  which 
the  pledge  has  been  constituted. 

3.  That  they  shall  have  become  demandable  before  the  payment  of 
the  previous  obligation. 

2418. 

Art.  2427.  If  the  pledge  having  been  sold  or  adjudicated  the  price 
should  not  be  sufficient  to  cover  the  debt  in  full,  it  shall  be  imputed  first 
to  the  interest  and  costs ;  and  if  the  pledge  should  have  been  constituted 


*  The  Code  of  Chile  says:  "Until  the  sale  shall  have  been  consummated  or  the 
adjudication  made     .     .     ." 


4»9 

for  the  security  of  two  or  more  obligations,  or  if  constituted  in  favor  of 
one  only,  it  should  subsequently  have  been  extended  to  others,  accord- 
ing to  the  preceding  article,  the  imputation  shall  be  made  in  accordance 
with  the  rules  given  in  the  Title  Of  the  manner  of  extinguishing  obliga- 
tions, Chapter  Of  the  imputation  of  payment. 

1653,  1654,  1655. 

Art.  2428.  The  creditor  is  obliged  to  return  the  pledge  with  the  increase 
which  it  may  have  received  by  nature  or  time.  If  the  pledge  shall  have 
produced  fruits,  he  may  impute  them  to  the  payment  of  the  debt,  giving 
an  account  thereof  and  answering  for  the  surplus. 

713  et  seq.f  2253. 

Art.  2429.  If  the  debtor  should  sell  the  thing  pledged,  the  purchaser 
shall  have  the  right  to  demand  its  delivery  of  the  creditor,  upon  the  pay- 
ment or  consignment  of  the  amount  of  the  debt  for  which  the  pledge  was 
expressly  contracted. 

A  similar  right  is  granted  to  the  person  upon  whom  the  debtor  may 
have  conferred  an  onerous  title  for  the  enjoyment  or  seizin  of  the 
pledge. 

In  none  of  these  cases  can  the  first  creditor  avoid  restitution,  by  plead- 
ing other  credits,  even  with  the  requisites  mentioned  in  article  2426. 

2440,  2497  No.  3,  2418. 

Art.  2430.  A  pledge  is  indivisible.  Consequently  the  heir  who  shall 
have  paid  his  share  of  the  debt,  cannot  demand  the  return  of  a  portion 
of  the  pledge,  as  long  as  any  part  whatsoever  of  the  debt  still  exists ;  and 
mutually,  the  heir  who  shall  have  received  his  share  of  the  credit,  cannot 
remit  the  pledge,  not  even  in  part,  until  his  co-heirs  shall  have  been  paid. 

1583  No.  1,  2433. 

Art.  2431.  The  right  of  pledge  is  extinguished  by  the  complete  de- 
struction of  the  thing  pledged. 

It  is  likewise  extinguished,  when  the  ownership  of  the  thing  pledged 
passes  to  the  creditor  under  any  title  whatsoever. 

And  when,  by  virtue  of  a  resolutory  condition,  the  ownership  which 
the  person  who  gave  the  thing  in  pledge  had  therein  is  lost ;  but  the  credi- 
tor in  good  faith  shall  have  against  the  debtor  who  did  not  inform  him 
of  the  condition,  the  same  right  as  in  the  case  of  article  2416. 

1186,  1724,  2408,  1553,  2441. 


490 

TITLE  XXXVII. 

Of  Mortgage. 

Art.  2432.  A  mortgage  is  a  right  of  pledge  constituted  upon  immov- 
ables which  do  not  thereby  cease  to  remain  in  the  possession  of  the  debt- 
or. 

2409,  665,  65. 

Art.  2433.  A  mortgage  is  indivisible. 

Consequently,  each  of  the  things  mortgaged  for  a  debt,  and  each  part 
thereof  are  bound  for  the  payment  of  the  entire  debt  and  for  each  part  of 
the  same. 

1583  No.  1,  1598,  2430. 

Art.  2434.  A  mortgage  must  be  executed  by  a  public  instrument. 
The  mortgage  and  the  contract  to  which  it  is  accessory  may  be  em- 
bodied in  one  and  the  same  public  instrument. 

1760,  1758  par.  2. 

Art.  2435.  The  mortgage  must  furthermore  be  recorded  upon  the 
Register  of  public  instruments;  without  this  requisite  it  shall  have  no 
value  whatsoever ;  nor  shall  its  date  be  counted  before  that  of  the  record. 

756,  2641  No.  3,  2652  No.  3,  2653,  2663  et  seq.y  2673.     43,  law  57 
of  1887.     2  and  3,  law  34  of  1887. 

Art.  2436.  Mortgage  contracts  celebrated  without  the  Republic  or  a 
Territory  shall  produce  a  mortgage  upon  property  situated  at  any  point 
thereof  or  of  the  respective  Territory,  provided  that  they  be  recorded 
upon  the  proper  Register. 

Art.  2437.  If  the  constitution  of  the  mortgage  suffers  a  relative  null- 
ity, and  is  subsequently  validated  by  the  lapse  of  time  or  by  ratification 
the  date  of  the  mortgage  shall  always  be  that  of  the  record. 

1741,  1874. 

Art.  2438.  The  mortgage  may  be  executed  subject  to  any  condition 
and  from  or  to  a  day  certain. 

If  executed  under  a  suspensive  condition  or  from  a  day  certain,  it 
shall  be  valid  only  after  the  performance  of  the  condition  or  from  the 
arrival  of  the  day ;  but  upon  the  performance  of  the  condition  or  the 
arrival  of  the  day,  its  date  shall  be  the  same  as  that  of  the  record. 

It  may  also  be  executed  at  any  time,  before  or  after  the  contracts  to 


491 

which  it  may  be  accessory ;  and  it  shall  begin  to  run  from  the  date  of 
record. 

Art.  2439.  A  mortgage  may  be  constituted  on  property  only  by  the 
person  capable  of  alienating  it  and  with  the  requisites  necessary  for  its 
alienation. 

The  property  of  one  person  may  be  mortgaged  for  the  security  of  the 
obligation  of  another ;  but  no  personal  action  against  the  owner  shall  lie, 
if  he  shall  not  have  expressly  subjected  himself  thereto. 

1521,  2169,  2412,  2413,  2454. 

Art.  2440.  The  owner  of  the  property  encumbered  by  a  mortgage 
may  at  any  time  alienate  or  mortgage  it,  notwithstanding  any  stipula- 
tion to  the  contrary. 

2022,  2319,  2429. 

Art.  2441.  He  who  shall  have  only  an  eventual,  limited  or  rescindible 
right  in  the  thing  mortgaged,  shall  be  understood  to  mortgage  it  only 
subject  to  the  conditions  and  limitations  to  which  the  right  may  be 
subject;  even  though  he  should  not  so  state. 

If  the  right  be  subject  to  a  resolutory  condition,  the  provisions  of 
article  1 548  shall  apply. 

752,  2431  par.  3. 

Art.  2442.  A  co-owner  may,  before  the  division  of  the  thing  held  in 
common,  mortgage  his  quota;  but  after  the  division  shall  have  been 
made,  the  mortgage  shall  affect  only  the  property  which  by  reason  of 
said  quota  may  be  adjudicated,  if  susceptible  of  mortgage.  If  not  sus- 
ceptible thereof,  the  mortgage  shall  lapse. 

Nevertheless,  the  mortgage  may  subsist  as  to  the  property  awarded 
to  the  other  participants,  if  the  latter  should  consent  thereto,  and  it 
should  so  appear  in  a  public  instrument,  of  which  a  note  shall  be  made 
in  the  margin  of  the  mortgage  record. 

1868,  779,  1401,  2457  last  par.,  2608. 

Art.  2443.  A  mortgage  can  be  placed  only  upon  real  property  pos- 
sessed in  ownership  or  usufruct,  or  upon  vessels. 

The  special  rules  governing  the  mortgage  of  vessels,  are  embodied  in 
the  Code  of  Commerce. 

Art.  2444.  The  mortgage  of  future  property  only  gives  the  right  to 
the  creditor  to  have  it  recorded  upon  the  immovables  which  the  debtor 
may  acquire  subsequently,  and^as  he'acquires  them. 

Art.  2445.  A  mortgage  constituted  upon  real  property  affects  the 
movables  which  by  accession  thereto  are  considered  immovables,  ac- 


492 

cording  to  article  658;  but  does  not  affect  them  when  they  belong  to 
third  persons. 

The  mortgage  extends  to  all  the  increases  and  improvements  which 
the  thing  mortgaged  may  receive. 

659,  661. 

Art.  2446.  The  mortgage  also  extends  to  the  payments  received  for 
the  lease  of  the  property  mortgaged,  and  to  the  indemnity  due  by  the 
underwriters  of  the  same  property. 

Art.  2447.  A  mortgage  upon  a  usufruct,  or  upon  mines  and  quarries, 
does  not  extend  to  the  fruits  received,  nor  to  the  mineral  substances, 
after  their  separation  from  the  soil. 

667. 

Art.  2448.  The  mortgage  creditor  has,  in  order  to  secure  payment 
upon  the  things  mortgaged,  the  same  rights  as  the  pledgee  upon  the 
pledge. 

2020  No.  3,  2499,  2422,  2497  No.  3. 

Art.  2449.  The  exercise  of  a  mortgage  action  does  not  prejudice  the 
personal  action  of  the  creditor  to  secure  payment  upon  the  property  of 
the  debtor  which  has  not  been  mortgaged  to  him ;  but  the  former  does 
not  communicate  to  the  latter  the  right  of  preference  corresponding  to 
the  first  named. 

Art.  2450.  The  owner  of  the  estate  proceeded  against  by  the  mort- 
gage creditor,  may  abandon  it  to  him,  and  before  the  adjudication  shall 
have  been  consummated,  he  may  recover  it,  upon  payment  of  the  amount 
for  which  the  estate  may  have  been  bound,  in  addition  to  the  costs  and 
expenses  which  such  abandonment  may  have  caused  the  creditor. 

2424. 

Art.  2451.  If  the  tenement  should  be  lost  or  deteriorate,  in  such 
manner  as  not  to  be  sufficient  for  the  security  of  the  debt,  the  creditor 
shall  have  the  right  to  an  increase  of  the  mortgage,  unless  he  consent  to 
receive  other  security  equivalent  thereto ;  and  in  the  absence  of  either, 
he  may  sue  for  the  immediate  payment  of  the  liquidated  debt,  even 
though  the  term  should  be  pending,  or  petition  for  the  conservative 
measures  of  which  the  case  may  admit,  if  the  debt  be  not  liquidated, 
conditional  or  indeterminate. 

1553,  2375,  2416. 

Art.  2452.  The  mortgage  gives  the  creditor  the  right  to  proceed 
against  the  tenement  mortgaged,  whoever  be  the  possessor  thereof,  and 
under  whatever  title  he  shall  have  acquired  it. 


493 

Nevertheless,  this  provision  shall  not  apply  to  a  third  person  who  may 
have  acquired  the  tenement  mortgaged  at  a  public  sale  ordered  by  the 
Judge. 

But,  in  order  that  said  exception  may  be  valid  in  favor  of  a  third  per- 
son, the  public  sale  must  be  held  after  a  personal  citation,  according  to 
the  term  of  summons  of  creditors  holding  mortgages  upon  the  same 
tenement;  which  shall  be  covered  from  the  price  of  the  sale,  in  their 
respective  order. 

The  Judge,  in  the  meantime,  shall  order  the  consignment  of  the  money. 

665,  2499,  952,  2020  No.  3. 

Art.  2453.  The  third  possessor  reconvened  for  the  payment  of  the 
mortgage  constituted  upon  the  tenement  which  afterwards  passed  to 
his  hands  with  this  charge,  shall  not  have  the  right  to  proceedings  being 
first  instituted  against  the  debtors  personally  obligated. 

By  making  the  payment,  he  becomes  subrogated  to  the  rights  of  the 
creditor  in  the  same  terms  as  a  surety. 

Should  he  be  dispossessed  of  the  tenement  or  abandon  it,  he  shall  be 
fully  indemnified  by  the  debtor,  including  the  improvements  he  may 
have  made  thereon. 

1668,  No.  1,  2395. 

Art.  2454.  He  who  shall  mortgage  his  own  immovable  for  the  debt 
of  another  shall  not  be  considered  as  personally  bound  if  this  should  not 
have  been  stipulated. 

Whether  he  shall  have  bound  himself  personally  or  not,  the  rule  con- 
tained in  the  preceding  article  shall  be  applied  to  him. 

The  security  is  called  a  mortgage  security  when  the  surety  binds  him- 
self by  a  mortgage. 

The  mortgage  security  is  subject  with  regard  to  a  personal  action  to 
the  rules  governing  a  simple  suretyship. 

2439  par.  2,  2383,  2384. 

Art.  2455.  The  mortgage  may  be  limited  to  a  specific  sum,  provided 
it  be  unequivocally  expressed,  but  shall  in  no  case  extend  to  more  than 
double  the  known  or  presumed  amount  of  the  principal  obligation,  even 
though  this  should  so  have  been  stipulated. 

The  debtor  shall  be  entitled  to  a  reduction  in  the  mortgage  to  said 
amount ;  and  upon  its  reduction,  a  new  record  shall  be  made  at  his  cost, 
by  virtue  of  which  the  first  one  shall  not  be  valid  beyond  the  amount 
which  may  be  fixed  in  the  second. 

Art.  2456.  The  record  of  the  mortgage  must  be  made  in  accordance 


494 

with  the  terms  prescribed  in  the  Title  Of  the  registration  of  public  instru- 
ments. 

756,  2641  No.  3,  2652  No.  3,  2653,  2663  et  seq.,  2673.     43,  law  57 
of  1887.     2,  law  34  of  1887. 

Art.  2457.  The  mortgage  is  extinguished  together  with  the  principal 
obligation. 

It  is  extinguished  likewise  by  the  resolution  of  the  right  of  him  who  con- 
stituted it,  or  by  the  event  of  the  resolutory  condition,  according  to  the 
legal  rules.  It  is  extinguished,  furthermore,  by  the  arrival  of  the  day 
to  which  it  may  have  been  constituted. 

And  by  the  cancellation  which  the  creditor  may  agree  (acordare)*  to 
in  a  public  instrument,  which  shall  be  noted  in  the  margin  of  the  respec- 
tive record. 

2537,  2536,  2538  et  seq.,  1758  par.  2,  1760,  2442  par.  2. 

*  The  Code  of  Chile  says:  "and  by  the  cancellation  which  the  creditor  may  execute 
(otorgare)     .     .     ." 


495 


TITLE  XXXVIII. 

Of  Antichresis.* 

Art.  2458.  Antichresis  is  a  contract  by  which  there  is  delivered  to  the 
creditor  real  property  in  order  that  he  may  pay  himself  with  its  fruits. 

Art.  2459.  The  real  property  may  belong  to  the  debtor  or  to  a  third 
person  assenting  to  the  antichresi's. 

Art.  2460.  The  contract  of  antichresis  is  perfected  by  the  tradition 
of  the  immovable. 

756,  1500. 

Art.  2461.  The  antichresis  alone  does  not  give  the  creditor  any  real 
right  in  the  thing  delivered. 

The  provisions  in  favor  of  the  lessee,  in  the  case  of  art.  2020,  apply  to 
the  antichresis  creditor. 

The  antichresis  shall  not  be  valid  as  against  real  rights,  nor  leases 
previously  constituted  upon  the  tenement. 

Art.  2462.  There  may  be  given  to  the  creditor  in  antichresis  the  im- 
movable previously  mortgaged  to  the  same  creditor;  and  there  may, 
likewise,  be  mortgaged  in  favor  of  the  creditor,  with  the  legal  formalities 
and  effects,  an  immovable  which  may  have  been  given  him  in  antichresis. 

Art.  2463.  The  creditor  who  is  in  possession  by  way  of  antichresis, 
enjoys  the  same  rights  as  the  lessee  for  the  payment  of  improvements, 
damages  and  expenses,  and  is  subject  to  the  same  obligations  as  the 
lessee,  with  relation  to  the  preservation  of  the  thing. 

i995>  1996  etseq. 

Art.  2464.  The  creditor  does  not  become  the  owner  of  the  immovable 
in  default  of  payment ;  nor  shall  he  have  any  preference  therein  over  the 
other  creditors,  excepting  such  as  may  be  given  him  by  the  accessory 
mortgage  contract,  if  there  be  any.  Any  stipulation  to  the  contrary  is 
null. 

Art.  2465.  If  the  credit  should  bear  interest,  the  creditor  shall  have 
the  right  to  the  imputation  of  the  fruits  being  first  made  to  the  same. 

1653- 

Art.  2466.  The  parties  may  stipulate  that  the  fruits  be  offset  with  the 
interest,  in  full,  or  to  the  extent  thereof. 

The  interest  stipulated  shall  be  subject,  in  case  of  lesion  beyond  a 
moiety,  to  the  same  reduction  as  in  the  case  of  mutuum. 

2231. 
*  See  La.  Civil  Code,  arts.  3176  [3143]  to  3 181  [3148]. 


496 

Art.  2467.  The  debtor  cannot  demand  the  restitution  of  the  thing 
given  in  antichresis,  until  after  the  total  extinction  of  the  debt,  but  the 
creditor  may  restore  it  to  him  at  any  time,  and  seek  to  recover  his  credit 
by  the  other  legal  means;  without  prejudice  to  what  may  have  been 
stipulated  to  the  contrary. 

Art.  2468.  With  regard  to  the  judicial  antichresis,  or  praetorian  pledge, 
the  provisions  of  the  Judicial  Code  shall  be  observed. 


TITLE  XXXIX. 

Of  Transaction.* 

Art.  2469.  Transaction  is  a  contract  in  which  the  parties  extrajudi- 
cially terminate  a  pending  lawsuit  or  prevent  eventual  litigation. 

An  act  consisting  only  of  the  renunciation  of  a  right  not  disputed  is 
not  a  transaction. 

Art.  2470.  A  person  to  transact  must  have  the  capacity  to  dispose  of 
the  objects  included  in  the  transaction. 

489,  1502,  1503,  1504. 

Art.  247 1 .  Every  mandatary  requires  a  special  power  to  transact. 
In  this  power  shall  be  specified  the  property,  rights  and  actions  regard- 
ing which  it  may  be  desired  to  transact. 

2158  par.  2. 

Art.  2472.  The  transaction  may  be  of  a  civil  action  arising  from  a 
criminal  offense ;  but  without  prejudice  to  the  criminal  action. 

Art.  2473.  A  compromise  as  to  the  civil  status  of  persons  cannot  be 
entered  into. 

15,  1523,  1526. 

Art.  2474.  The  transaction  on  the  future  allowances  for  support  to 
persons  to  whom  they  may  be  due  by  law,  shall  not  be  valid  without 
judicial  approval;  nor  can  the  Judge  approve  it  if  the  provisions  con- 
tained in  articles  424  and  425  should  be  violated. 

*  See  La.  Civil  Code,  arts.  3071  [3038]  to  3083  [3050]. 


497 

Art.  2475.  A  transaction  on  the  rights  of  others  or  on  rights  which  do 
not  exist,  is  not  valid. 

1397  par.  2,  1869,  1870. 

Art.  2476.  A  transaction  obtained  by  forged  titles,  and  in  general 
fraudulently  or  with  violence,  is  null. 

1515,  1513,  1514. 

Art.  2477.  A  transaction  entered  into  in  consideration  of  a  title  which 
is  null,  is  null  in  all  its  parts,  unless  the  parties  shall  have  expressly  com- 
promised on  the  nullity  of  the  title. 

Art.  2478.  A  transaction  is  likewise  null  if,  at  the  time  of  celebration, 
the  litigation  were  already  concluded  by  a  judgment  having  the  force  of 
res  judicata,  and  of  which  the  parties  or  any  of  them  should  not  have  had 
knowledge  at  the  time  of  transacting. 

Art.  2479.  The  transaction  is  presumed  to  have  been  accepted  in  con- 
sideration of  the  person  with  whom  the  transaction  is  entered  into. 

Hence,  if  it  be  believed  that  a  compromise  is  being  entered  into  with 
one  person,  and  it  actually  is  with  another,  the  transaction  may  be 
rescinded. 

In  the  same  manner,  if  a  compromise  be  entered  into  with  the  apparent 
possessor  of  a  right,  this  transaction  cannot  be  alleged  against  the  person 
in  whom  the  right  really  is  vested. 

66,  1512. 

Art.  2480.  An  error  as  to  the  identity  of  the  object  on  which  it  is  de- 
sired to  compromise,  annuls  the  transaction. 

1510,  1511. 

Art.  248 1 .  An  error  of  calculation  does  not  annul  the  transaction ;  it 
only  gives  a  right  to  a  correction  of  the  calculation. 

Art.  2482.  If  it  shall  appear  from  authentic  titles  that  one  of  the  par- 
ties had  no  right  whatsoever  to  the  object  which  has  been  the  subject  of 
the  transaction,  and  these  titles  at  the  time  of  the  transaction  were  un- 
known to  the  party  whose  rights  they  favor,  the  transaction  may  be 
rescinded  ;  unless  a  special  object  shall  not  have  been  the  subject  thereof, 
but  the  entire  controversy  between  the  parties,  and  there  were  several 
objects  of  disagreement  between  them. 

In  such  case,  the  subsequent  discovery  of  unknown  titles,  shall  not  be 
a  cause  of  rescission,  excepting  in  so  far  as  they  shall  have  been  fraudu- 
lently mislaid  or  concealed  by  the  opposite  party. 

If  the  fraud  should  be  with  regard  to  one  of  the  objects  the  subject  of 
the  transaction,  the  party  prejudiced  may  demand  the  restitution  of  his 
right  in  said  object. 

1758,  1510. 


498 

Art.  2483.  The  transaction  produces  the  effect  of  res  judicata  in  last 
instance ;  but  a  declaration  of  nullity  or  rescission  may  be  petitioned  for, 
in  accordance  with  the  preceding  articles. 

765  pars.  5  and  6. 

Art.  2484.  The  transaction  produces  its  effects  between  the  contract- 
ing parties  only. 

If  there  be  a  number  of  persons  principally  interested  in  the  matter 
the  subject  of  the  transaction,  the  compromise  assented  to  by  one  of 
them  does  not  prejudice  nor  benefit  the  others ;  excepting,  however,  the 
effects  of  the  novation  in  the  case  of  solidarity. 

1397  par.  2,  1583  No.  4,  1749,  1759,  1576,  1704- 

Art.  2485.  If  the  transaction  involve  one  or  more  specific  objects,  the 
general  renunciation  of  all  rights,  actions  or  claims,  shall  be  understood 
only  as  to  the  rights,  actions  or  claims  relating  to  the  thing  or  things  the 
subject  of  the  transaction. 

Art.  2486.  If  a  penalty  shall  have  been  stipulated  against  him  who 
shall  fail  to  carry  out  the  transaction,  the  penalty  shall  lie,  without  preju- 
dice to  the  transaction  being  carried  out  in  all  its  parts. 

1592  etseq. 

Art.  2487.  If  one  of  the  parties  shall  have  renounced  the  right  vested 
in  him  by  virtue  of  a  title,  and  subsequently  shall  acquire  another  title 
to  the  same  object,  the  transaction  does  not  deprive  him  of  the  right  sub- 
sequently acquired. 


499 

TITLE  XL. 

Of  the  Preference  of  Credits. 

Art.  2488.  Every  personal  obligation  gives  the  creditor  the  right  to 
enforce  its  execution  upon  all  the  real  property  or  movables  of  the  debtor, 
whether  present  or  future,  excepting  only  that  not  subject  to  attach- 
ment designated  in  article  1677. 

Art.  2489.  In  the  things  subject  to  identification  which  may  belong  to 
other  persons  by  reason  of  ownership,  in  the  possession  of  the  insolvent 
debtor,  the  respective  owners  shall  preserve  their  rights,  without  preju- 
dice to  the  real  rights  of  the  debtor  therein,  as  usufructuary  or  pledgee, 
or  of  the  right  of  retention  granted  him  by  law ;  in  all  of  which  the  cred- 
itors may  be  subrogated. 

They  may,  likewise,  be  subrogated  in  the  rights  of  the  debtor,  as  lessor 
or  lessee,  according  to  the  provisions  of  articles  2023  and  2026. 

Nevertheless,  neither  the  usufruct  of  the  husband  in  the  property  of 
the  wife,  nor  that  of  the  father  of  a  family  in  the  property  of  the  son,  nor 
the  real  rights  of  use  or  of  habitation,  shall  be  subject  to  attachment. 

862,  2000  and  citations,  1670  par.  2,  1677  No.  9,  1792  No.  5,  1781 
No.  2,  1806,  1809,  291. 

Art.  2490.  All  acts  executed  by  the  debtor  with  relation  to  the  prop- 
erty which  he  may  have  assigned,  or  by  a  debtor  with  regard  to  his 
bankruptcy  assets,  shall  be  null. 

1521,  1633,  1636  No.  3,  1672. 

Art.  2491.  With  regard  to  the  acts  executed  before  the  cession  of 
property  or  the  institution  of  bankruptcy  proceedings,  the  following 
provisions  shall  be  observed : 

1.  The  creditors  shall  have  a  right  to  have  the  onerous  contracts  re- 
scinded, as  well  as  the  mortgagees,  pledges,  and  antichreses  which  the 
debtor  may  have  executed  to  their  prejudice,  both  the  transferrer  and 
the  transferree  acting  in  bad  faith,  that  is,  both  being  aware  of  the  bad 
state  of  the  affairs  of  the  debtor. 

2.  The  acts  and  contracts  not  included  in  the  preceding  number,  in- 
cluding the  remissions  and  agreements  of  discharge  under  a  gratuitous 
title,  shall  be  susceptible  of  rescission  if  the  bad  faith  of  the  debtor  and 
the  prejudice  of  the  creditors  be  established. 

3.  The  actions  granted  in  this  article  to  the  creditors,  expire  in  one 
year,  counted  from  the  date  of  the  act  or  contract. 

862  par.  2,  1295,  1441,  1451. 


500 

Art.  2492.  The  creditors,  with  the  exceptions  indicated  in  article 
1677,  may  demand  that  all  the  property  of  the  debtor  be  sold  to  the 
extent  of  their  credits,  including  the  interest  and  costs  of  collection,  in 
order  that  the  same  may  be  paid  in  full  with  the  proceeds,  if  the  property 
should  be  sufficient,  and  otherwise,  pro  rata,  when  there  shall  be  no 
special  causes  to  prefer  certain  credits,  according  to  the  following  classi- 
fications : 

1685  No.  6. 

Art.  2493.  The  causes  of  preference  are  only  a  privilege  and  a  mort- 
gage. 

These  causes  of  preference  are  inherent  in  the  credits,  for  the  security 

"of  which  they  shall  have  been  established,  and  pass  with  the  same  to  all 

persons  who  acquire  them  by  cession,  subrogation  or  in  any  other  manner. 

1670. 

Art.  2494.  Credits  of  the  first,  second  and  fourth  class  are  privileged. 
Art.  2495.  The  first  class  of  credits  comprises  those  which  result  from 
the  following  causes : 

1.  The  judicial  costs  incurred  in  the  general  interests  of  the  creditors. 

2.  The  necessary  funeral  expenses  of  the  deceased  debtor. 

3.  The  expenses  of  the  last  illness  of  the  debtor. 

If  the  illness  shall  have  lasted  more  than  four  months,  the  Judge  shall, 
according  to  the  circumstances,  fix  the  sum  to  which  the  preference  shall 
extend. 

4.  The  wages  of  employees  and  servants  for  the  last  three  months. 

5.  The  necessary  articles  of  subsistence  furnished  the  debtor  and  his 
family  during  the  last  three  months. 

The  Judge,  on  the  petition  of  the  creditors,  shall  have  the  power  to 
estimate  this  charge  if  it  appear  to  him  exaggerated. 

6.  The  credits  of  the  Fisc  and  those  of  the  Municipalities  for  fiscal  or 
municipal  imposts  due. 

1016. 

Art.  2496.  The  credits  enumerated  in  the  preceding  article,  affect  all 
the  property  of  the  debtor;  and  should  there  not  be  sufficient  to  cover 
them  in  full,  they  shall  be  preferred  according  to  the  order  of  their 
numeration  whatever  be  their  date,  and  those  included  in  each  number 
shall  concur,  pro  rata. 

The  credits  enumerated  in  the  preceding  article  shall  in  no  case  pass 
against  third  possessors. 

Art.  2497.  To  the  second  class  of  credits  belong  those  of  the  persons 
enumerated  herewith : 


50i 

i .  The  innkeeper  upon  the  effects  of  the  debtor,  brought  by  the  latter 
into  the  inn,  during  his  stay,  and  to  the  extent  of  what  may  be. due  him 
for  lodging,  expenses  and  damages. 

2.  The  carrier  or  transportation  agent  upon  the  effects  transported 
which  he  may  have  in  his  possession  or  in  that  of  his  agents  or  employees, 
to  the  extent  of  what  may  be  due  for  the  transportation,  expenses  and 
damages ;  provided  that  said  effects  are  the  property  of  the  debtor. 

It  shall  be  presumed  that  they  are  the  property  of  the  debtor  when  the 
effects  are  brought  by  him  into  the  inn,  or  transported  for  his  account. 

3.  The  pledge  creditor  on  the  pledge. 

2075,  66,  2000  par.  2,  2258,  2417,  2429. 

Art.  2498.  If  credits  of  the  first  and  credits  of  the  second  class  shall 
affect  the  same  specific  thing,  the  latter  shall  exclude  the  former;  but  if 
the  rest  of  the  property  should  be  insufficient  to  cover  the  credits  of  the 
first  class,  the  latter  shall  be  preferred  as  to  the  deficit,  and  they  shall 
participate  in  said  specific  thing,  in  the  order  and  form  indicated  in  the 
first  paragraph  of  article  2495. 

Art.  2499.  The  third  class  of  credits  comprises  the  mortgage  creditors. 

With  regard  to  any  tenement  encumbered  by  a  mortgage  there  may 
be  instituted,  on  the  petition  of  the  respective  creditors,  or  of  any  of 
them  special  bankruptcy  proceedings  in  order  that  they  may  be  paid 
immediately  therewith,  according  to  the  order  of  the  dates  of  their  mort- 
gages. 

The  mortgages  of  the  same  date  encumbering  one  and  the  same  tene- 
ment, shall  be  preferred  to  each  other  according  to  the  order  in  which 
they  may  be  recorded. 

In  these  proceedings,  the  judicial  costs  caused  therein  shall  first  be 
paid. 

2448,  2452,  2020  No.  3. 

Art.  2500.  The  credits  of  the  first  class  shall  not  be  extended  to  the 
mortgaged  tenements,  excepting  in  case  they  cannot  be  covered  in  full 
with  the  other  property  of  the  debtor. 

The  deficit  shall  then  be  divided  among  the  estates  mortgaged  in  pro- 
portion to  the  value  of  the  latter,  and  what  may  be  due  each  shall  be 
covered  therewith,  in  the  order  and  form  stated  in  article  2495. 

Art.  2501.  The  mortgage  creditors  shall  not  be  obliged  to  await  the 
results  of  the  general  bankruptcy  proceedings  in  order  to  proceed  to 
exercise  their  actions  against  the  respective  tenements :  it  shall  be  suffi- 
cient that  they  consign  a  reasonable  sum  for  the  payment  of  the  credits 
of  the  first  classs,  in  the  part  falling  to  them,  and  that  they  return  to  the 
assets  what  may  remain  after  their  actions  shall  have  been  covered. 

Art.  2502.  The  fourth  class  of  credits  comprises : 

1.  Those  of  the  Fisc  against  the  collectors,  administrators  and  auc- 
tioneers of  revenues  and  fiscal  property. 


502 

2.  Those  of  charitable  or  educational  institutions,  supported  with 
public  funds,  and  those  of  the  community  of  the  corregimientos,  against 
the  collectors,  administrators  and  auctioneers  of  their  property  and 
revenues. 

3.  Those  of  married  women  for  their  property  which  the  husband  ad- 
ministers, upon  the  property  of  the  latter. 

4.  Those  of  the  children  of  the  family  for  their  property  administered 
by  the  father,  upon  the  property  of  the  latter. 

5.  Those  of  the  persons  under  tutorship  or  curatorship,  against  their 
respective  tutors  or  curators. 

6.  Those  of  every  ward,  against  the  person  marrying  the  mother  or 
grandmother,  tutrix  or  curatrix  in  the  case  of  article  599. 

180,  1805. 

Art.  2503.  The  credits  enumerated  in  the  preceding  article,  indis- 
tinctively  prefer  each  other  according  to  the  dates  of  their  causes ;  which 
is: 

The  date  of  the  appointment  of  administrators  and  collectors,  or  that 
of  the  public  sale  with  regard  to  the  credits  of  numbers  1  and  2. 

That  of  the  respective  marriage  in  the  credits  of  numbers  3  and  6. 

That  of  the  birth  of  the  son  in  those  of  number  4. 

That  of  the  judicial  confirmation  of  the  tutorship  or  curatorship  in 
those  of  number  5. 

Art.  2504.  The  preferences  of  numbers  3,  4,  5  and  6,  are  understood 
as  constituted  in  favor  of  the  real  property  or  real  rights  therein,  which 
the  wife  may  have  brought  to  the  marriage,  or  of  the  real  property  or 
real  rights  therein,  belonging  to  the  respective  children  of  the  family, 
and  persons  under  tutorship  or  curatorship,  and  of  which,  the  husband, 
father,  tutor  or  curator  may  have  had  the  seizin ;  and  in  favor  of  all  the 
property  in  which  the  rights  of  the  said  persons  are  established  by 
formal  inventories,  testaments,  acts  of  partition,  judgments  of  adjudi- 
cation, public  instruments  of  marriage  agreements,  of  donation,  sale 
or  exchange,  or  others  of  similar  authenticity. 

The  preference  of  the  fourth  class  extends  also  to  the  rights  and 
actions  of  the  wife  against  the  husband,  or  of  the  children  of  a  family  and 
persons  under  tutorship  or  curatorship,  against  their  parents,  tutors  or 
curators,  by  reason  of  fault  or  fraud  in  the  administration  of  the  respec- 
tive property,  the  charges  being  proved  in  any  trustworthy  manner. 

Art.  2505.  The  confession  of  the  bankrupt  husband,  father  of  a  family 
or  tutor  or  curator,  shall  not  alone  be  proof  against  the  creditors. 

202,  1759,  1769,  1795  par.  2. 

Art.  2506.  The  preferences  of  the  credits  of  the  fourth  class  affect  all 
the  property  of  the  debtor,  but  do  not  produce  a  right  of  action  against 


503 

third  possessors,  and  only  lie  after  the  credits  of  the  first  three  classes,  of 
whatever  date  they  may  be,  shall  have  been  covered. 

Art.  2507.  The  preferences  of  the  first  class  to  which  the  property  of 
the  deceased  debtor  may  have  been  subject,  shall  affect  in  the  same  man- 
ner the  property  of  the  heir,  unless  the  latter  shall  have  accepted  under 
the  benefit  of  inventory,  or  that  the  creditors  enjoy  the  benefit  of 
separation,  as  in  either  case  they  shall  affect  only  the  property  inven- 
toried or  separated. 

The  same  rule  shall  be  applied  to  the  property*  of  the  fourth  class, 
which  shall  preserve  their  date  upon  all  the  property  of  the  heir,  when 
the  benefits  of  inventory  or  separation  do  not  lie,  and  shall  only  preserve 
it  as  to  the  property,  inventoried  or  separated,  when  the  respective  bnee- 
fits  do  lie. 

1 155,  1302  par.  2,  1304,  1435. 

Art.  2508.  The  law  recognizes  no  other  causes  of  preference  than  those 
established  in  the  preceding  articles. 

Art.  2509.  The  fifth  and  last  class  comprises  the  propertyf  which  does 
not  enjoy  any  preference. 

The  credits  of  the  fifth  class  shall  be  covered  pro  rata  from  the  balance 
of  the  insolvent  estate,  without  consideration  of  their  date. 

Art.  2510.  The  preferred  credits  which  cannot  be  covered  in  full  by 
the  means  indicated  in  the  preceding  articles,  shall  pass  for  the  deficit 
to  the  list  of  the  property  %  of  the  fifth  class,  in  which  they  shall  partici- 
pate pro  rata. 

Art.  25 1 1 .  Interest  shall  run  to  the  date  of  the  extinction  of  the  debt, 
and  shall  be  preferred  as  are  the  respective  principals. 

*  The  Code  of  Chile  says  ".  .  .  The  same  rule  shall  be  applied  to  the  credits 
of  the  fourth  class     .     .     ." 

t  The  Code  of  Chile  says:  "The  fifth  and  last  class  comprises  the  credits  which  do 
not  enjoy  any  preference." 

X  The  Code  of  Chile  says :  "      .     .     .     to  the  list  of  the  credits  of  the  fifth     .     .     ." 


5<H 

TITLE  XLL 
Oi'  Prescription. 

Chapter  i. 
Of  Prescription  in  General. 

Art.  2512.  Prescription  is  a  manner  of  acquiring  the  things  of  another, 
or  of  extinguishing  another's  actions  or  rights,  by  reason  of  having 
possessed  the  things^and  said  actions  and  rights  not  having  been  ex- 
ercised during  a  certain  lapse  of  time,  and  with  the  attendance  of  the 
other  legal  requisites.* 

,An  action  or  right  prescribes  when  it  is  extinguished  by  prescription. 

762. 

Art.  2513.  He  who  shall  desire  to  take  advantage  of  prescription, 
must  plead  it ;  the  Judge  cannot  declare  it  ex  propria  motu. 

1743. 

Art.  2514.  The  prescription  may  be  expressly  or  impliedly  renounced ; 
but  only  after  having  been  acquired. 

It  is  impliedly  renounced,  when  he  who  is  able  to  plead-  it  manifests 
by  an  act  that  he  recognizes  the  right  of  the  owner  or  of  the  creditor ; 
for  example,  when  the  legal  conditions  for  prescription  having  been  ful- 
filled, the  possessor  of  the  thing  takes  it  in  lease,  or  he  who  owes  money 
pays  interest  or  demands  time. 

66. 

Art.  2515.  The  prescription  can  be  renounced  only  by  one  capable  of 
alienating. 

Art.  2516.  The  surety  may  oppose  to  the  creditor  the  prescription 
renounced  by  the  principal  debtor. 

2380. 

Art.  2517.  The  rules  regarding  prescription  are  applied  equally  in 
favor  of  and  against  the  Nation,  the  Territory,  municipalities,  establish- 
ments and  corporations  and  private  individuals  who  have  the  free  ad- 
ministration of  their  property. 

2532,  2544,  2545. 
*The  Code  of  Chile  says:  '.'  .     .     .    of  extinguishing  another's  actions  and  rights." 


5°5 

Chapter  2. 
Of  the  Prescription  by  Which  Things  Are  Acquired. 

Art.  2518.  The  ownership  of  corporeal  things,  real  or  movable,  which 
are  the  object  of  trade,  and  which  have  been  possessed  with  the  legal 
conditions,  is  acquired  by  prescription. 

The  other  real  rights  not  especially  excepted  are  acquired  in  the  same 
manner. 

762,  939,  665. 

Art.  25 19.  In  no  case  is  property  of  public  use  subject  to  prescription. 

Art.  2520.  The  omission  of  acts  or  mere  power,  and  the  mere  tolerance 
of  acts  which  do  not  result  in  any  charge,  do  not  confer  possession,  nor 
do  they  give  any  basis  for  any  prescription  whatsoever. 

Hence,  he  who  shall  ha/e  for  a  number  of  years  not  built  upon  land 
belonging  to  himself,  does  not  by  such  action  confer  upon  his  neighbor 
the  right  to  prevent  him  from  building. 

In  the  same  manner,  he  who  shall  tolerate  that  the  cattle  of  his  neigh- 
bor pass  through  his  vacant  land,  or  graze  thereon,  does  not  thereby  im- 
pose a  right  of  way  or  servitude  of  pasture. 

Acts  of  mere  power  are  called  those  which  any  person  may  exercise 
in  regard  to  his  own  property,  without  necessity  of  the  consent  of 
another. 

2220  par.  2,  939,  676. 

Art.  2521.  If  a  thing  shall  have  been  possessed  successively  and  with- 
out interruption,  by  two  or  more  persons,  the  time  of  the  previous 
possessor  may  or  may  not  be  added  to  the  time  of  the  successor, 
according  to  the  provisions  of  article  778. 

The  possession  begun  by  a  deceased  person  continues  in  the  vacant 
inheritance,  which  shall  be  understood  to  possess  in  the  name  of  the 
heir. 

1034. 

Art.  2522.  Uninterrupted  possession  is  that  which  has  not  suffered 
any  natural  or  civil  interruption. 

Art.  2523.  The  interruption  is  natural: 

1 .  When  without  the  possession  having  passed  into  other  hands,  the 
exercise  of  possessory  acts  shall  have  been  made  impossible,  as  when  a 
tenement  has  been  permanently  flobded. 

2.  When  the  possession  shall  have  been  lost  by  reason  of  another  hav- 
ing entered  thereon. 

The  natural  interruption  of  the  first  kind  produces  no  other  effect  than 
that  of  deducting  its  duration;  but  the  natural  interruption  of  the 


506 

second  kind  causes  all  the  time  of  the  previous  possession  to  be  lost; 
unless  possession  shall  have  been  legally  recovered,  in  accorandce  with 
the  provisions  contained  in  the  title  on  possessory  actions,  as  in  such 
case  there  shall  not  be  considered  that  there  was  an  interruption  for  the 
person  dispossessed. 

792. 

Art.  2524.  Civil  interruption  is  any  judicial  remedy  instituted  by  him 
who  claims  to  be  tbe  real  owner  of  the  thing,  against  the  possessor. 

Only  the  person  who  shall  have  instituted  this  remedy  may  plead  the 
interruption,  and  not  even  he  in  the  following  cases: 

1 .  If  notice  of  the  suit  shall  not  have  been  served'in  legal  form. 

2.  If  the  complainant  shall  have  expressly  abandoned  the  suit,  or 
ceased  its  prosecution  for  more  than  three  years. 

In  these  three  cases  the  prescription  shall  not  be  considered  as  having 
been  interrupted  by  the  suit.* 

Art.  2525.  If  the  property  belongs  in  common  to  various  persons,  he 
who  shall  interrupt  the  prescription  with  regard  to  one  of  them,  does  so 
also  with  regard  to  the  others. 

779,  943,  1586,  2540,  1749. 

Art.  2526.  The  acquisitive  prescription  of  real  property  or  of  real 
rights  constituted  therein  does  not  obtain  against  a  recorded  title,  ex- 
cept by  virtue  of  another  recorded  title,  nor  shall  it  begin  to  run  but  from 
the  date  of  the  record  of  the  second. 

789. 

Art.  2527.  Acquisitive  prescription  is  ordinary  and  extraordinary. 

Art.  2528.  To  acquire  the  ordinary  prescription,  a  regular  uninter- 
rupted possession,  during  such  time  as  the  laws  require,  shall  be  neces- 
sary. 

764,  766. 

Art.  2529.  The  time  necessary  for  ordinary  prescription  is  three  years 
for  movables,  and  ten  years  for  real  property. 

Every  two  days  shall  be  counted  as  one  for  absentees,  in  the  compu- 
tation of  the  years. 

As  present  for  the  purposes  of  prescription  are  understood  those  who 
live  in  the  territory,  and  as  absent,  those  who  reside  in  a  foreign  country. 

939  par.  2,  753. 

*  In  this  article  two  cases  only  are  established;  the  third  of  the  corresponding 
article  of  the  Code  of  Chile  has  been  omitted,  which  is  as  follows:  "Art.  2503.  .  .  . 
3.     If  the  defendant  shall  have  received  a  decision  in  his  favor." 


507 

Art.  2530.  Ordinary  prescription  may  be  suspended  without  being 
extinguished ;  in  such  case,  the  cause  of  the  suspension  ceasing,  the  time 
prior  therto,  if  there  be  any,  shall  be  credited  to  the  possessor. 

Ordinary  prescription  is  suspended  in  favor  of  the  following  persons : 

1.  Minors,  the  insane,  deaf  mutes,  and  all  those  who  may  be  under 
paternal  or  marital  power,  or  under  tutorship  or  curatorship. 

2.  A  vacant  inheritance. 

The  prescription  is  not  interrupted  in  favor  of  a  divorced  wife  or  one 
who  is  separate  in  property,  with  regard  to  that  which  she  administers 
The  prescription  is  always  suspended  between  the  spouses. 

2541- 

Art.  2531.  The  ownership  of  things  in  commerce,  which  shall  not 
have  been  acquired  by  ordinary  prescription,  may  be  acquired  by  ex- 
traordinary prescription,  under  the  following  rules : 

1.  For  the  extraordinary  prescription  no  title  whatsoever  is  neces- 
sary. 

2.  Good  faith  is  presumed  therein  of  right  notwithstanding  the  ab- 
sence of  a  title  acquisitive  of  ownership. 

3.  But  the  existence  of  a  title  of  mere  possession,  shall  cause  bad  faith 
to  be  presumed  and  shall  not  produce  the  prescription,  unless  the  follow- 
ing two  circumstances  be  present : 

1 .  That  he  who  claims  to  be  the  owner  cannot  prove  that  during  the 
past  thirty  years  his  ownership  shall  have  been  acknowledged  expressly 
or  impliedly  by  the  person  pleading  the  prescription. 

2.  That  he  who  pleads  the  prescription  shall  prove  that  he  has  had 
possession  without  violence,  concealment,  nor  interruption  for  the  same 
period  of  time. 

66  par.  4,  775,  777,  1506  par.  2,  2539. 

Art.  2532.  The  lapse  of  time  necessary  to  acquire  by  this  kind  of 
prescription,  is  thirty  years  against  any  person,  and  is  not  suspended  in 
favor  of  those  enumerated  in  article  2530. 

2541  par.  2. 

Art.  2533.  Real  rights  are  acquired  by  prescription  in  the  same 
manner  as  ownership,  and  are  subject  to  the  same  rules  with  the  follow- 
ing exceptions : 

1.  The  right  of  inheritance  is  acquired  by  extraordinary  prescription 
of  thirty  years. 

2.  The  right  of  servitude  is  acquired  according  to  article  939. 

1032,  1267  par.  2,  1326. 


508 

Art.  2534.  A  judicial  decision  declaring  a  prescription  shall  take  the 
place  of  a  public  instrument  for  the  ownership  of  real  property  or  of  real 
rights  constituted  therein ;  but  it  shall  not  be  valid  against  third  persons, 
unless  properly  recorded. 

758,  17. 

Chapter  3. 
Of  Prescription  as  a  Means  of  Extinguishing  Judicial  Actions. 

Art.  2535.  The  prescription  which  extinguishes  the  actions  and 
rights  of  others  requires  only  the  lapse  of  a  certain  time  during  which 
said  actions  shall  not  have  been  exercised. 

This  time  shall  be  counted  from  the  date, the  obligation  shall  have 
become  demandable. 

2300. 

Art.  2536.  An  executory  action  prescribes  by  ten  years,  and  the 
ordinary  action  by  twenty. 

An  executory  action  is  converted  into  an  ordinary  action  after  the 
lapse  of  ten  years,  and  after  having  become  converted  into  an  ordinary 
one,  shall  last  ten  years  more  only. 

125  of  law  153  of  1887. 

Art.  2537.  A  mortgage  action  and  the  other  actions  resulting  from 
an  accessory  obligation,  prescribe  together  with  the  obligation  to  which 
they  are  accessory. 

2457. 

Art.  2538.  Any  action  claiming  a[right  is  extinguished  by  the  acquisi- 
tive prescription  of  the  same  right. 

Art.  2539.  The  prescription  which  extinguishes  the  actions  of  others, 
may  be  interrupted,  either  naturally  or  civilly. 

It  is  interrupted  naturally  by  the  act  of  the  debtor  recognizing  the 
obligation,  either  in  an  express  or  implied  manner. 

It  is  interrupted  in  a  civil  manner,  by  a  judicial  suit;  reserving  the 
cases  enumerated  in  article  2524. 

2531  last  par. 

Art.  2540.  The  interruption  operating  in  favor  of  one  of  several  co- 
creditors,  does  not  benefit  the  others,  nor  does  that  which  operates  to 
the  prejudice  of  one  of  several  co-debtors,  prejudice  the  others,  unless 


509 

there  shall  be  solidarity,  and  it  shall  not  have  been  renounced  in  the 
terms  of  article  1573. 

943,  1581,  1586,  2525,  1568  par.  2. 

Art.  2541.  The  prescription  which  extinguishes  obligations  is  sus- 
pended in  favor  of  the  persons  enumerated  in  No.  1  of  article  2530. 

The  suspensions  mentioned  in  the  preceding  paragraph  shall  not  be 
taken  into  consideration  after  the  lapse  of  thirty  years. 

2532. 

Chapter  4. 
Of  Certain  Actions  which  Prescribe  in  a  Short  Time. 

Art.  2542.  The  following  are  prescribed  in  three  years:  the  judicial 
costs  enumerated  in  title  7,  book  I  of  the  Judicial  Code  of  the  Union,* 
including  the  counsel  fees;  those  of  physicians  and  surgeons;  those 
of  directors  or  professors  of  colleges  and  schools;  those  of  engineers 
and  surveyors,  and  in  general  those  of  persons  who  exercise  any  liberal 
profession. 

Art.  2543.  The  action  of  tradesmen  (mercaderes) ,  general  providers 
(proveedores) ,  and  artisans,  for  the  price  of  the  articles  they  sell  at 
retail,  prescribe  in  two  years. 

Also  those  of  employees  and  servants  for  their  wages. 

Those  of  any  persons  for  the  price  of  services  rendered  periodically  or 
accidentally,  such  as  innkeepers,  carriers,  messengers,  barbers,  etc. 

Art.  2544.  The  prescriptions  mentioned  in  the  two  preceding  articles, 
run  against  all  persons  whatsoever,  and  do  not  admit  of  suspension. 

They  are  interrupted : 

1.  When  a  note  or  written  obligation  is  given,  or  an  extension  of  time 
by  the  creditor. 

2.  When  a  judicial  notice  is  served. 

In  both  cases  the  short  prescription  is  followed  by  that  of  article  2536. 

498,  2524,  2539. 

Art.  2545.  Prescriptions  of  a  short  time  to  which  are  subject  special 
actions,  resulting  from  certain  acts  or  contracts,  are  mentioned  in  the 
respective  titles,  and  run  also  against  all  persons ;  unless  another  rule 
be  expressly  established. 

498. 


*In  the  new  edition  (1887)  this  Title  corresponds  to  Title  VIII  of  Book  I. 


5io 
TITLE  XL11. 

r 

Notaries  Public  in  tlie  TerritorievS. 

Chapter  i. 

Art.  2546.  In  the  Territories  which  the  General  Government  of  the 
Union  administers,  there  shall  be  notaries  public,  as  established  in  the 
Administrative  Code. 

11  of  law  14  of  1887.     6  of  law  46  of  1887. 

Art.  2547.  The  receipt,  drafting  and  authentication  of  acts  and  con- 
tracts to  which  natural  or  judicial  persons  must  or  wish  to  give  authen- 
ticity and  make  of  public  record,  in  accordance  with  law,  are  in  charge 
of  the  Notary  Public. 

2576,  2577,  2579,   1758,   1759,   1760.     6,  law  34   of    1887.     332, 
law  57  of  1887. 

Art.  2548.  The  portion  of  territory  outlined  for  the  exercise  of  notar- 
ial functions,  is  called  a  Notarial  Circuit,  and  the  place  fixed  for  the 
location  of  the  Notary's  office,  is  the  seat  of  the  Notarial  Circuit. 

Art.  2549.  The  notaries  are  obliged  to  reside  in  the  seat  of  the  notar- 
ial circuit,  from  which  they  cannot  absent  themselves  except  in  the 
exercise  of  their  duties,  and  with  permission  of  the  Prefect  or  Corregidor, 
when  the  absence  is  to  exceed  twenty-four  hours. 

In  cases  of  leave  of  absence,  it  shall  be  granted  by  the  respective 
Prefect  of  the  Territory,  care  being  taken  that  as  soon  as  the  notary 
leaves  the  office,  the  official  called  upon  to  take  his  place,  assume  charge 
of  the  office. 

11,  law  14  of  1887.     6,  law  of  46  of  1887.     37  par.  2,  of  law  57 
of  1887. 

Art.  2550.  The  functions  of  the  notariat  may  be  exercised  by  each 
notary  only  within  the  jurisdiction  of  the  respective  notarial  circuit ;  all 
acts  and  contracts  authenticated  by  a  notary  beyond  such  jurisdiction, 
in  his  official  capacity,  are  null. 

Art.  2551.  Each  notary  shall  have  a  substitute  who  shall  take  his 
place  in  cases  of  absence  or  impediment. 

If  the  absence  be  absolute,  that  is,  when  it  causes  a  vacancy  in  the 
office,  the  substitute  shall  discharge  the  notarial  duties  until  the  appoint- 
ment of  a  permanent  notary  in  accordance  with  law.* 

*  See  comment  to  art.  2562. 


5H 

Art.  2552.  Circuit  notaries,  both  principal  and  substitute,  shall  be 
appointed  in  accordance  with  the  provisions  of  the  administrative  code. 

Impliedly  repealed  by  art.  12,  law  14,  of  1887. 

Art.  2553.  In  order  to  be  eligible  for  appointment  as  a  principal,  sub- 
stitute or  provisional  notary,  it  is  necessary  that  the  applicant  be  a 
citizen  of  well-known  honesty.* 

Art.  2554.  Persons  who  have  been  sentenced  to  a  grave  penalty  or 
to  removal  or  suspension  from  public  office,  cannot  be  notaries. 

Art.  2555.  The  office  of  notary  is  incompatible  with  any  other  office 
in  the  Union. 

4  par.  2,  93,  law  61  of  1861.     Laws  7  and  129  of  1887. 

Art.  2556.  Notaries  are  forbidden  to  assume  the  private  or  official 
management  of  the  business  of  others.  In  cases  of  a  violation  of  this 
provision,  the  respective  officials  shall  prepare  the  proper  papers  and 
transmit  them  to  the  judge  of  competent  jurisdiction  or  to  the  Prefect. 

Art.  2557.  The  term  of  office  for  notaries  shall  be  two  years,  from 
January  1st  following  their  appointment,  and  they  may  be  reappointed. 

Art.  2558.  Notaries  shall  have  their  offices  in  the  most  public  places 
of  the  town  where  they  reside. 

Art.  2559.  Notaries  shall  have  the  office  hours  which  the  respective 
Prefect  may  fix,  and  shall  make  the  same  public  by  posters,  one  of  which 
shall  be  affixed  to  the  door  of  their  offices. 

During  the  hours  fixed  as  office  hours,  notaries  are  obliged  to  serve 
the  persons  calling  upon  them  and  they  shall  be  liable  to  the  parties  or 
persons  interested  for  any  loss  which  they  may  suffer  through  a  failure 
to  draft  or  authenticate  in  due  time  the  instruments  or  papers  in  which 
notaries  must  take  part,  if  said  failure  be  due  to  the  absence  of  the  notary 
during  office  hours  or  to  another  act  chargeable  to  him. 

37  par.  2,  law  57  of  1887. 

Art.  2560.  Notaries  are  also  obliged  to  discharge  their  functions  out- 
side of  their  offices,  but  within  the  territory  which  is  comprised  in  the 
seal  of  the  notarial  circuit,  on  any  days  and  at  any  hours  they  may  be 
called  upon  by  persons  physically  incapable  of  going  to  the  notarial 
office,  or  when  urgent  cases  are  involved  in  which  delay  would  be  pre- 
judicial. 

Art.  2561.  With  the  exception  of  the  cases  mentioned  in  the  two 
preceding  articles,  notaries  are  not  obliged  to  act,  although  they  may  do 
so  voluntarily. 

Art.  2562.  Notaries  are  forbidden  to  authenticate  instruments  pecu- 

*  Provisional  notaries,  referred  to  in  this  article,  have  not  been  provided  for  by 
the  law. 


512 

liar  to  their  profession  which  may  result  in  some  direct  advantage  to  the 
authenticating  notaries,  or  their  ascendants,  descendants  or  brothers, 
and  the  spouses  of  either,  or  the  wife  of  the  notary,  the  ascendants,  de- 
scendants or  brothers  of  said  wife. 

The  clauses  from  which  the  direct  advantage  results  shall  be  null  and 
of  no  value  and  effect  in  any  of  the  cases  of  prohibition  referred  to  in  the 
preceding  paragraph;  the  other  provisions  of  the  deed  or  instrument 
shall  not  be  annulled  for  the  reason  stated ;  excepting  the  liability  which 
the  offending  notary  may  incur. 


Chapter  2. 

Books  to  be  Kept  by  Notaries. 

Art.  2563.  Notaries  shall  keep  two  books,  the  first  to  be  called  the 
Memorandum  book  (minutario),  and  the  second,  the  Protocol. 

2570. 

Art.  2564.  The  memorandum  book  shall  be  a  book  of  ordinary  paper, 
bound  and  foliated.  At  the  beginning  there  shall  be  a  note  subscribed 
by  the  full  signature  of  the  notary,  stating  the  number  of  folios  it  con- 
tains. 

The  period  covered  by  the  memorandum  book  is  the  same  as  that 
of  the  respective  protocol. 

2571,  2569. 

Art.  2565.  The  purpose  of  the  memorandum  book  is  to  enter  therein 
a  succinct  statement  of  the  clause  sand  conditions  of  the  acts  or  contracts 
which  are  intrusted  by  the  persons  interested  to  the  notaries  for  drafting. 

2567,  2568. 

Art.  2566.  The  notes  made  in  the  memorandum  book  must  form  a 
series,  that  is  to  say,  an  orderly  and  successive  continuation,  without 
large  blank  spaces  between  them. 

Art.  2567.  An  entry  in  the  memorandum  book  shall  be  made  when 
the  person  interested  requires  it,  in  which  event  they  and  the  notary 
shall  sign  the  entry  with  their  full  names. 

Art.  2568.  When  the  entries  in  the  memorandum  book  have  been 
signed  by  the  parties  in  interest,  they  have  the  legal  value  of  private 
documents,  provided  that  there  are  no  words  in  said  entries  that  have 
been  erased,  corrected  or  inserted  which  change  the  meaning,  and  that 
any  of  the  persons  interested  denies  that  when  he  signed  it,  the  insertion, 
correction  or  erasure  was  present. 

2567,  1761.     89  law  153  of  1887. 


513 

Art.  2569.  The  memorandum  book  is  closed  upon  the  expiration  of 
the  term  which  it  covers  by  means  of  a  note  of  the  date  of  closing  and  of 
the  number  of  entries  contained  therein.  This  note  shall  be  signed  with 
the  full  signature  of  the  notary. 

2564  par.  2. 

Art.  2570.  The  protocol  is  the  book  made  up  of  the  original  instru- 
ments drafted  by  the  notary,  and  of  those  which  the  law  or  a  magistrate 
orders  embodied  therein. 

2576,  2606,  2607. 

Art.  2571.  The  period  covered  by  or  the  duration  of  a  protocol,  is  one 
calendar  year. 

Art.  2572.  When  in  view  of  the  number  of  instruments  passing  before 
a  notary,  during  the  term  mentioned,  he  should  be  of  opinion  that  the 
final  formation  of  a  single  volume  of  the  protocol  would  be  unhandy  on 
account  of  its  size,  during  said  term  two  or  more  protocols  may  be  opened 
which  shall  be  called  first,  second,  etc. 

Art.  2573.  Whether  a  new  protocol  is  opened,  as  permitted  by  the 
provisions  of  the  preceding  article,  or  the  term  of  the  protocol  has  con- 
cluded, the  preceding  protocol  shall  be  foliated  and  at  the  end  thereof 
a  closing  memorandum  shall  be  made,  with  the  full  subscription  of  the 
respective  Prefect  or  Corregidor  and  the  notary,  stating  the  dates  and 
the  contents  of  the  first  and  last  of  the  instruments  contained  in  the 
protocol,  the  number  of  written  folios  and  the  total  number  of  instru- 
ments, stating  the  number  in  force,  the  number  cancelled,  and  the  num- 
ber left  unsigned  by  the  parties. 

The  closing  note  referred  to  shall  be  made  within  four  days  after  the 
new  protocol  is  opened,  and  not  more  than  eight  days  later  the  previous 
protocol  must  be  sewn  and  bound  in  paper  or  board.  At  the  end  of  the 
volume  the  number  of  blank  sheets  of  paper  shall  be  placed  which  may 
be  considered  necessary  for  the  preparation  of  the  index  referred  to  in 
the  following  paragraph,  this  work  being  done  before  the  notary  and 
under  his  liability. 

After  the  protocol  shall  have  been  thus  formed,  a  chronological  index 
of  the  instruments  shall  be  made  at  the  end,  stating  the  names  of  the 
contracting  parties  and  the  general  contents  of  each  instrument,  men- 
tioning those  in  force,  those  cancelled,  and  those  left  unsigned  by  the 
parties,  with  references  to  the  corresponding  folios.  This  index,  which 
must  be  concluded  within  a  period  not  exceeding  eight  days  from  the 
date  of  the  binding  of  the  protocol,  shall  also  be  signed  with  the  full  sig- 
natures of  the  Prefect  or  Corregidor  and  by  the  notary,  who  shall  prepare 
an  authenticated  copy  thereof  for  transmission  to  the  office  of  the 
Prefect. 


5H 

Art.  2574.  The  protocols  shall  be  guarded  with  the  greatest  care  by 
the  notaries,  from  whose  offices  they  cannot  be  removed.  If  it  should 
be  neessary  for  the  magistrate  to  make  an  ocular  inspection  of  a  proto- 
col, he  shall  proceed  with  his  secretary  to  the  office  of  the  respective 
notary  for  the  purpose. 

Art.  2575.  It  shall  also  be  the  duty  of  the  notary  to  keep  and  take 
care  of  the  register  of  the  civil  status  of  persons,  in  the  manner  pre- 
scribed in  Title  XX,  Book  I,  of  this  Code. 

Chapter  3. 

Acts  and  Instruments  Passing  before  Notaries  and  Copies  which  they  Issue. 

Art.  2576.  The  authentication  of  acts  and  contracts  is  placed  by  law 
in  the  hands  of  the  notary,  as  also  its  confidence  with  regard  to  docu- 
ments placed  under  the  custody  of  the  said  notary.  Consequently,  it 
shall  be  his  duty  to  make  a  record  of  the  dates  of  such  acts  and  contracts, 
the  names  of  the  persons  who  were  parties  thereto,  and  the  character 
and  nature  of  the  said  acts  and  contracts.  He  is  also  charged  with  the 
care  of  all  instruments  passing  through  his  hands  and  of  the  papers  and 
records  which,  by  provision  of  law  or  order  of  the  magistrate,  are  ordered 
embodied  in  the  protocols  of  the  notarial  offices,  or  which  are  taken  care 
of  in  such  offices. 

2547,  2570,  2606. 

Art.  2577.  Instruments  which  are  executed  before  a  notary  and  kept 
on  file  in  the  respective  protocol,  are  public  instruments. 

1758  par.  2. 

Therefore,  acts  and  contracts  relating  to  the  alienation  or  convey- 
ance of  the  ownership  of  real  property  and  the  constitution  of  mort- 
gages, the  imposition  of  any  charge,  responsibility  or  servitude,  and 
generally  all  contracts  or  acts  inter  vivos,  limiting  the  right  of  ownership 
in  real  property,  must  pass  through  the  hands  of  or  be  executed  before 
a  notary,  as  well  as  other  acts  and  contracts  with  regard  to  which  the 
law  requires  that  a  record  thereof  be  inserted  in  a.  oublic  document  or 
instrument. 

1760  and  citations. 

Art.  2578.  There  must  also  be  executed  in  every  case  before  a  notary , 
sealed  or  secret  testaments,  and  also  ordinary  nuncupative  testaments 
when  in  the  place  where  the  latter  are  made  a  notary  can  be  easily 
secured. 

1 760  and  citations,  1070,  1078. 


515 

Art.  2579.  What  has  been  said  in  the  preceding  articles,  does  not 
prevent  the  execution  before  a  notary  of  acts  and  contracts  which  the 
parties  desire  be  embodied  in  a  public  instrument,  even  though  such  a 
formality  for  acts  or  contracts  shall  not  have  been  prescribed  by  law. 

2547- 

Art.  2580.  The  instruments  drafted  in  the  protocol  must  follow  each 
other,  without  any  blank  or  open  spaces  being  left  in  the  body  of  each 
instrument ;  but  between  the  instrument  preceding  and  the  one  follow- 
ing, such  space  as  may  be  absolutely  necessary  may  be  left  for  the  signa- 
tures to  be  affixed  thereto,  in  the  event  that  the  respective  instrument 
was  not  signed  immediately  after  execution. 

2594. 

Art.  2581.  All  instruments  drafted  in  a  notarial  office  during  the 
term  of  the  books,  shall  be  numbered  consecutively,  the  number  corres- 
ponding to  the  instrument  being  written  out.  This  numeration  shall  be 
the  first  thing  to  be  done  when  an  instrument  is  drafted,  and  the  numera- 
tion shall  be  continued  in  all  the  instruments  drafted  during  one  term, 
even  though  different  protocols  are  made  up  therefrom. 

2572,  2594. 

Art.  2582.  The  dates  and  the  amounts  to  be  mentioned  in  instru- 
ments shall  be  written  out  and  not  inserted  in  figures. 

Nevertheless,  if  after  an  amount  has  been  written  out,  the  parties  to 
the  instrument  desire  that  the  same  amount  be  indicated  immediately 
thereafter  in  figures,  this  may  be  done  by  setting  down  the  respective 
numerals  in  parentheses  immediately  thereafter. 

2594- 

Art.  2583.  The  use  of  initials  in  the  names  and  surnames  of  the  par- 
tics  and  in  the  names  of  things,  and  abbreviations  of  the  words  in  instru- 
ments, the  erasure  of  what  is  written  therein  or  the  blotting  out  thereof 
rendering  it  impossible  to  read  what  had  been  written,  is  absolutely 
prohibited.  Names,  surnames  and  words  must  be  written  out  in  full, 
and  when  any  error  or  mistake  is  committed,  it  shall  be  corrected  or 
underlined,  the  words  which  it  is  desired  to  omit  being  placed  in  paren- 
theses, and  the  words  to  be  added  being  written  between  the  lines. 

In  all  the  cases  of  this  article,  a  note  shall  be  made  in  the  margin 
of  the  respective  instrument  opposite  the  correction,  repeating  in 
full  the  words  corrected,  underlined,  or  inserted,  stating  whether 
they  are  to  stand  or  not,  which  note  shall  be  signed  with  the  full 
name  of  the  parties,  the  attesting  witnesses  and  the  notary.     If  on 


5i6 

account  of  the  large  amount  corrected,  the  note  cannot  be  made  in  the 
margin,  it  shall  be  made  at  the  end  of  the  instrument ;  and  if  the  instru- 
ment shall  have  already  been  signed,  it  shall  be  made  immediately  after 
the  signatures  and  signed,  as  stated,  by  the  parties  thereto,  the  witnesses 
and  the  notary. 

2586,  2594. 

Art.  2584.  In  any  case  in  which  the  notes  referred  to  in  the  preceding 
article  are  not  properly  entered  and  signed,  the  corrections  shall  be  void, 
and  the  original  writing  shall  be  given  due  credit,  without  prejudice  to 
the  enforcement  of  the  liability  which  the  notary  may  have  incurred  or 
the  person  who  may  have  made  the  corrections. 

2594- 

Art.  2585.  If  after  an  instrument  shall  have  been  drafted  it  should 
remain  unsigned,  on  account  of  the  withdrawal  of  the  parties  thereto  or 
for  any  other  reason,  the  notary,  without  erasing  the  number  which 
corresponds  to  the  instrument,  shall  make  and  subscribe,  with  his  whole 
signature,  a  statement  at  the  foot  of  the  said  instrument,  of  the  reason 
for  the  absence  of  signatures. 

2594- 

Art.  2586.  Every  act  or  contract  which  is  to  be  filed  in  the  protocol, 
must  bear  the  full  subscription  of  the  parties  thereto,  of  two  male  wit- 
nesses over  twenty-one  years  of  age,  residing  in  the  notarial  circuit  and 
of  good  credit,  and  of  the  notary,  who  shall  authenticate  all;  the  two 
witnesses  are  called  attesting  witnesses. 

2583,  2587. 

The  attesting  witnesses  must  be  present  when  the  instrument  is  read 
to  the  contracting  parties,  must  hear  that  they  approve  it,  and  see  that 
they  sign  the  same. 

If  any  of  the  contracting  parties  does  not  know  how  or  cannot  sign,  a 
witness  other  than  the  attesting  witnesses  shall  do  so,  provided  such 
witness  has  the  qualifications  required  of  attesting  witnesses. 

2594- 

Art.  2587.  Attesting  witnesses  cannot  be  persons  who  are  deprived 
of  their  reason  or  under  a  judicial  interdiction  from  testifying,  nor  the 
ascendants,  descendants,  brothers,  uncles,  nephews,  spouses,  parents- 
in-law,  or  brothers  and  sisters  in  law  of  the  contracting  parties  or  of  the 
notary,  persons  who  receive  a  direct  benefit  from  the  instrument  in 
question,  and  the  subordinates,  employees  or  servants  of  the  contracting 
parties,  of  the  notary  and  of  the  other  persons  mentioned  in  this  article. 


5i7 

Art.  2588.  With  regard  to  the  number  and  qualifications  of  the  wit- 
nesses to  testaments,  the  provisions  of  Title  III,  Book  III,  of  this  Code, 
shall  be  observed. 

1070,  1078,  1071. 

Art.  2589.  The  notary  must  be  acquainted  with  the  persons  who 
desire  his  services;  if  he  be  not  acquainted  with  them,  he  must  not  act, 
unless  they  present  two  known  persons  of  good  reputation,  possessing: 
the  other  qualifications  required  of  attesting  witnesses,  who  assure  that 
they  are  acquainted  with  the  contracting  parties,  and  that  their  names 
are  the  ones  they  claim;  these  witnesses  are  called  witnesses  of  identifica- 
tion. This  circumstance  shall  be  mentioned  in  the  instrument,  and  the 
identification  witnesses  named,  who  shall  subscribe  the  instrument 
together  with  the  contracting  parties,  the  attesting  witnesses  and  the 
notary. 

2586. 

Art.  2590.  Notaries  are  responsible  only  for  the  formal  portion,  and 
not  for  the  substance  of  the  acts  or  contracts  they  authorize. 

Nevertheless,  when  an  act  or  contract,  or  any  clause  of  an  act  or 
contract,  appears  to  them  illegal,  they  must  so  inform  the  parties,  without 
refusing  the  authentication  in  any  case. 

2547,  2576,  2595,  2608. 

Art.  2591.  Nor  are  the  notaries  responsible  for  the  capacity  or  legal 
qualifications  of  the  parties  to  the  execution  of  the  act  or  the  celebration 
of  the  contract  which  they  formulate ;  but  they  are  responsible  for  the 
attesting  witnesses,  and,  in  a  proper  case,  for  the  identification  witnesses, 
having  the  qualifications  required  by  law. 

2586,  2589,  2592,  2593. 

Art.  2592.  Notwithstanding  the  provisions  of  the  preceding  article, 
if  the  notary  should  know  that  the  contracting  parties  do  not  have  the 
legal  capacity  or  qualifications  to  enter  into  contracts  alone,  he  shall  so 
advise  the  said  contracting  parties;  and  if,  this  notwithstanding,  they 
should  insist  upon  the  execution  of  the  instrument,  the  notary  shall 
draft  and  authenticate  it,  making  a  note  in  the  instrument  of  the  notice 
given  the  contracting  parties  and  of  their  insistence. 

f  2608. 

Art.  2593.  When  the  contracting  parties  themselves  show  to  the 
notary  their  inability  to  bind  themselves  naturally,  such  as  a  person 
who  has  not  reached  the  age  of  puberty,  or  to  bind  themselves  civilly, 


5*8 

such  as  a  person  under  legal  age,  a  married  woman  in  the  cases  where  the 
authority  of  her  husband  is  necessary,  the  notary  shall  not  furnish  his 
services  for  the  execution  of  contracts. 

Nor  shall  the  notary  furnish  his  services  to  a  person  of  whom  he  has 
evidence  that  he  is  absolutely  incapable  of  contracting,  such  as  an  insane 
person  or  a  deaf  and  dumb  person  who  cannot  make  himself  under- 
stood in  writing,  which  incapacities  the  notary  himself  observes  at  the 
time  of  the  celebration  of  the  contract,  or  to  a  person  of  whose  incapacity 
the  notary  has  official  cognizance,  such  as  a  person  who  has  been  declared 
under  judicial  interdiction  from  administering  his  property  by  a  judg- 
ment published  in  the  press  or  legally  communicated  to  the  notary. 

2591,  2592. 

Art.  2594.  As  a  general  rule,  instruments  executed  before  a  notary 
shall  contain :  the  number  corresponding  to  them  in  the  series  of  instru- 
ments; the  place  and  date  of  execution;  the  legal  denomination  of  the 
notary  before  whom  it  is  executed ;  the  names  and  surnames,  sex,  resi- 
dence and  age  of  the  contracting  parties  or  of  their  legal  representatives ; 
juridical  persons  shall  be  designated  by  their  legal  or  popular  designa- 
tion, or  by  the  place  of  their  establishment,  and  what  has  been  said  above 
regarding  the  legal  representatives  of  natural  persons,  is  made  to  apply 
to  their  representatives ;  the  character  or  nature  of  the  act  or  contract, 
with  all  the  circumstances  which  clearly  evidence  the  rights  conferred 
and  the  obligations  imposed,  with  a  statement  of  the  cautions  or  mort- 
gages placed  or  charges  or  limitations  imposed  upon  the  right  of  owner- 
ship and  the  origin  of  the  title  of  the  conveyor. 

Things  and  amounts  shall  be  determined  in  an  unequivocal  manner, 
and  if  immovables  are  treated  of  in  the  instrument  in  a  direct  or  indirect 
manner,  a  record  of  the  situation  thereof  and  of  their  bounds  shall  be 
made,  and  also  if  the  real  property  be  rural,  its  name  and  the  district  or 
districts  in  which  it  is  situated ;  and,  if  urban,  in  addition,  the  street 
upon  which  located  and  the  number  of  the  property,  if  it  have  any. 

The  designation  of  the  name,  situation  and  boundaries  of  an  estate 
shall  be  made,  even  though  the  alienation,  mortgage,  or  encumbrance 
of  a  part  of  an  estate  held  pro  indiviso  is  in  question.  In  such  case,  there 
shall  be  designated  the  name,  situation  and  boundaries  of  the  common 
estate,  stating  that  it  contains  the  part  alienated,  mortgaged  or  en- 
cumbered. 

If  a  bond  be  involved  in  the  contract,  the  attendance  of  the  bondsman 
and  the  terms  according  to  which  he  binds  himself  must  be  stated. 

With  regard  to  women,  it  shall  be  stated  whether  they  are  married  or 
single,  and,  if  married,  whether  they  act  with  the  permission  of  their  hus- 
bands or  of  the  Judge  or  Prefect  in  substitution,  and  whether  they  are 
legally  divorced  or  their  property  is  separate. 


5i9 

The  entire  statement  shall  be  closed  with  the  signatures  of  the  con- 
tracting parties,  of  the  other  persons  who  may  have  participated  in  the 
act  or  contract,  of  the  identification  witnesses,  in  a  proper  case,  of  the 
attesting  witnesses  and  of  the  notary. 

A  testament  shall  contain  the  designations  prescribed  in  Book  3,  Title 
III,  on  Testaments. 

2580  to  2586. 

Art.  2595.  The  following  are  substantial  formalities  in  public  instru- 
ments, and  their  absence  invalidates  the  instrument,  without  prejudice 
to  the  legal  causes  for  nullity  of  acts  and  contracts  passing  before  nota- 
ries: the  statement  of  the  place  and  date  of  the  execution;  the  legal  de- 
nomination of  the  notary  before  whom  they  are  executed;  the  names 
and  surnames,  sex,  age,  and  residence  of  the  contracting  parties  or  of 
their  legal  representatives;  the  full  signatures  of  the  contracting  parties, 
those  of  the  identification  witnesses,  in  a  proper  case,  and  those  of  the 
other  persons  who  may  have  taken  part  in  the  act  or  contract,  or  of 
those  who  sign  at  the  request  of  those  who  cannot  or  do  not  know  how 
to  sign;  and  the  full  signatures  of  the  attesting  witnesses  and  of  the 
notary.* 

Art.  2596.  The  contracting  parties  may  draw  the  instrument  them- 
selves, containing  the  designations  necessary,  according  to  the  character 
of  the  document,  in  which  event  the  notary  shall  file  the  instrument 
given  him,  after  adding  thereto  the  proper  heading  and  closing  clause 
corresponding  to  the  act  or  contract  which  the  instrument  embodies. 

2594- 

Art.  2597.  If  the  drawing  up  of  the  instrument  be. entrusted  to  the 
notary  by  the  persons  interested,  he  shall  draft  it  in  simple  terms,  using 
words  in  their  legal  acceptance,  confining  himself  strictly  to  what  has 
been  agreed,  without  imposing  any  conditions  not  requested,  without 
inserting  unnecessary  clauses,  and  observing  the  general  rules  pre- 
scribed by  art.  2594. 

Art.  2598.  Notaries  and  Judge-Notaries,  in  drafting  an  instrument 
involving  the  sale  of  real  estate,  shall  observe  the  form  published  at  the 
end  of  this  Book.f 

Art.  2599.  The  parties  may  express  in  the  instrument  the  number  of 
copies  thereof  to  be  issued,  stating  the  persons  to  whom  they  are  to  be 
given,  and  the  notary  must  do  so. 

2604. 

*  This  article  has  been  amended  by  art.  333  of  law  57  of  1887. 

Note  that  there  is  a  difference  between  the  substantial  formalities  of  an  act  or  con- 
tract which  notaries  authorize,  and  the  substantial  formalities  of  a  public  instrument. 
See  art.  2590. 

f  This  article  has  been  repealed  by  art.  45  of  law  57  of  1887. 


520 

Art.  2600.  If  the  parties  should  not  state  anything  regarding  the  issue 
of  copies  of  the  instrument,  the  notary  shall,  nevertheless,  give  a  copy 
to  each  of  the  parties. 

Art.  2601.  Even  though  the  contracting  parties  should  not  have 
stated  anything  regarding  the  number  of  copies  to  be  made,  or  even  if 
his  respective  copy  shall  have  been  given  to  each  party,  according  to  the 
preceding  article,  an  instrument  being  involved  which  would  not  give  a 
right  of  action  for  the  enforcement  of  an  obligation  or  by  which  a  third 
party  cannot  be  prejudiced,  the  notary  shall  give  the  copies  which  may 
be  requested  to  the  persons  interested  and  not  to  others. 

Art.  2602.  But  if  an  instrument  is  in  question  by  virtue  of  which  a 
demand  may  be  made  for  the  fulfillment  of  an  obligation  whenever  the 
instrument  is  presented,  the  notary  shall  not  issue  any  second  or  subse- 
quent copies  thereof  without  an  order  from  the  Judge  or  Prefect  of  the 
respective  circuit  or  territory. 

2605. 

ArT.  2603.  In  order  that  in  the  case  of  the  preceding  article  the  Judge 
or  Prefect  may  order  the  issue  of  a  copy  of  an  instrument,  the  following 
requisites  are  necessary : 

1.  That  the  person  requesting  the  copy  state  to  the  Judge  or  Prefect, 
under  oath,  that  without  malice  or  neglect  on  his  part  the  copy  which 
he  had  in  his  possession  was  destroyed  or  lost,  or  that  said  copy  is  filed 
in  another  case,  mentioning  the  same,  and  that  the  petitioner  requires 
another  copy  for  a  different  purpose,  incompatible  with  the  use  to 
which  he  devoted  the  copy  which  he  had. 

2.  That  he  does  not  know  the  whereabouts  of  said  copy,  if  the  case 
be  one  of  loss. 

3.  That  the  obligation  had  not  become  extinguished  in  whole  or  in 
part,  as  the  case  may  be 

4.  That  if  the  lost  copy  should  be  recovered,  if  the  case  be  one  of  loss, 
he  obligates  himself  not  to  make  use  thereof  and  to  deliver  it  to  the 
respective  notary  in  order  that  the  latter  may  destroy  it. 

Upon  such  request  being  made,  the  opposite  party  shall  be  cited,  and 
if  such  party  confesses  the  debt,  or  does  not  contradict  the  petition 
within  three  days  after  the  citation,  the  Judge  or  Prefect  shall  grant  the 
petition  and  the  notary  shall  issue  the  copy  immediately  below  the  order 
of  the  Judge  or  Prefect. 

If  the  opposite  party  plead  that  the  obligation  is  extinguished,  and 
that  he  consequently  opposes  the  issue  of  the  copy,  the  Judge  or  Prefect 
shall  grant  a  common  period,  not  exceeding  fifteen  days,  for  proof  of  the 
plea,  and  if  such  proof  be  not  adduced  during  such  period,  the  Judge  or 
Prefect  shall  order  that  the  copy  be  issued  as  prescribed  in  the  preceding 
paragraph.     From  the  decision  of  the  Judge  or  Prefect  an  appeal  lies  to 


521 

the  Federal  Supreme  Court,  which  shall  hear  and  determine  the  appeal 
as  an  interlocutory  issue. 

Art.  2604.  Copies  must  be  made  on  perfectly  white  paper,  all  sheets 
rubricated  by  the  notary  in  the  margin  and  authenticated  at  the  foot 
with  the  full  signature  of  the  notary,  stating  the  date  of  issue,  the  num- 
ber of  sheets  it  contains,  for  whom  the  respective  copy  is  prepared,  and, 
in  a  proper  case,  by  order  of  what  Judge  or  Prefect  it  has  been  issued. 
If  the  copy  should  contain  any  insertion,  error  or  erasure,  a  note  thereof 
shall  be  made  at  the  foot,  before  the  authentication  of  the  copy,  as  pre- 
scribed regarding  original  instruments  in  article  2583. 

Notes  shall  be  made  in  the  margin  of  the  original  instrument,  signed 
with  the  surname  of  the  notary,  of  the  number  of  copies  issued,  to  whom 
and  on  what  date  and  by  order  of  what  Judge  or  Prefect,  if  a  judicial 
order  was  made  for  the  purpose,  and  at  the  foot  or  in  the  margin  of  the 
copies  the  notary  shall  state,  also  subscribing  his  surname  only,  the 
number  of  the  respective  copy  and  the  fees  charged  for  the  original 
instrument  and  the  copy,  citing  the  provision  of  law  by  virtue  of  which 
he  made  the  charge. 

The  last  note  mentioned  in  the  preceding  paragraph,  shall  also  be 
made  by  the  notary  in  all  other  cases  in  which  he  is  required  to  charge 
fees  for  acts  or  proceedings  passing  before  him,  or  in  which  he  takes  part, 
making,  a  proper  record  of  the  charge  upon  the  respective  paper  or  act. 

2608  and  citations. 

Art.  2605.  No  copy  of  a  cancelled  instrument  shall  be  issued  except 
on  the  order  of  the  Judge  or  Prefect  of  competent  jurisdiction  and 
inserting  necessarily  the  memorandum  or  statement  of  cancellation. 

2601,  2602,  2603,  2610,  2613. 

Art.  2606.  Natural  or  juridical  persons  may  have  the  documents  they 
desire  placed  in  a  protocol  and  the  notary  must  so  protocol  the  document 
in  the  place  and  under  the  number  corresponding  thereto  in  the  protocol. 

By  filing  in  the  protocol,  the  document  in  question  does  not  acquire 
more  force  than  it  originally  had,  as  the  purpose  thereof  is  only  the 
security  and  custody  of  the  document  placed  in  the  protocol. 

2570,  2576,  2607. 

Art.  2607.  Final  judgments  of  all  kinds,  and  public  sale  proceedings 
which  the  parties  or  persons  interested  desire  inserted  in  the  protocol 
shall  be  transmitted  by  copy  to  the  notary  in  order  that  he  may  so 
insert  them,  according  to  the  provisions  of  the  preceding  article.  For 
the  same  purpose,  copies  of  acts  of  partition  of  property,  inventories 
and  other  data  which  may  be  necessary  for  an  understanding  thereof, 
shall  be  transmitted   to  him  as  soon  as  they    have    been  judicially 


522 

approved.  The  documents  mentioned  which,  according  to  law,  require 
registration,  shall  not  be  placed  in  the  protocol,  if  they  do  not  bear  the 
proper  note  of  record. 

Art.  2608.  In  cases  of  public  counter  instruments,  in  which,  accord- 
ing to  this  Code,  a  memorandum  of  such  counter  instruments  must  be 
made  in  the  margin  of  the  original  instrument  to  which  they  refer,  the 
notary  shall  so  inform  the  contracting  parties. 

He  shall  also  advise  the  parties  of  their  obligation  to  have  instruments 
requiring  registration  under  the  law,  so  recorded. 

In  a  word :  the  notary  shall  give  the  parties  the  information  necessary 
in  order  that  the  act  passing  before  him  be  not  annulled  or  deficient  by 
the  omission  of  any  legal  formality. 

1766  par.  2,  1779,  2442  par.  2,  2457  last  par.,  2590  par.  2,  2592. 

Art.  2609.  The  omission  on  the  part  of  the  notary  to  give  the  infor- 
mation prescribed,  does  not  legalize  the  instrument  with  regard  to  which 
the  lack  of  formality  may  have  been  incurred ;  but  the  notary  becomes 
liable  according  to  the  laws.* 


Chapter  4. 

Of  the  Cancellation  of  Public  Instruments. 

Art.  2610.  The  cancellation  of  an  instrument  is  the  declaration  that 
it  is  without  force  on  account  of  the  cessation  of  the  legal  effects  of  the 
obligations  contained  therein. 

2612. 

Art.  261 1.  The  cancellation  shall  take  place  in  the  three  following 
cases  only : 

1 .  At  the  request  of  the  parties  to  the  instrument,  of  their  agents  or 
legal  representatives,  or  of  their  heirs,  who  appear  before  the  notary  to 
make  the  cancellation. 

2.  By  the  presentation  of  another  instrument  executed  before  the 
same  notary  who  authorized  the  previous  instrument,  or  before  another 
notary,  in  which  the  parties  to  the  original  instrument,  their  agents, 
legal  representatives  or  heirs,  have  declared  that  the  original  instrument 
must  be  cancelled  or  considered  cancelled.     And 

3.  By  a  decree  of  the  Judge  or  Prefect,  declaring  that  the  cancellation 
must  be  made. 

37  par.  2,  law  57  of  1887. 

*  This  article  has  been  repealed  by  art.  98  of  Law  153  of  1887,  and  substituted  with 
art.  96  of  said  law. 


523 

Art.  2612.  The  cancellation  shall  be  made  by  another  instrument 
prepared  in  the  office  of  the  notary  who  authenticated  the  original 
instrument,  and  in  the  place  and  with  the  proper  number  in  the  proto- 
col, stating  that  said  original  instrument  is  cancelled,  which  instrument 
shall  be  cited  by  its  number,  date,  and  folio  in  the  respective  protocol, 
and  the  contents  of  the  instruments. 

If  the  cancellation  should  be  made  in  the  first  of  the  two  cases  men- 
tioned in  the  preceding  article,  the  instrument  of  cancellation  shall  be 
subscribed  by  the  attesting  witnesses  and  the  notary,  together  with  the 
parties,  their  agents,  or  legal  representatives,  or  their  heirs,  attaching 
thereto  the  papers  evidencing  the  character  of  the  agent,  legal  represen- 
tative or  only  heir,  if  there  be  only  one,  or  of  all  the  heirs,  if  there  be 
several. 

If  the  cancellation  should  be  made  in  the  second  or  in  the  third  of  the 
cases  of  the  preceding  article,  a  reference  shall  be  made  in  the  instru- 
ment of  cancellation  to  the  instrument  or  decree  of  the  Judge  or  Prefect, 
expressing  the  persons  who  have  requested  the  cancellation,  who  shall 
sign  with  the  attesting  witnesses  and  the  notary.  The  copies  of  the  instru- 
ment or  of  the  judicial  decree,  in  a  proper  case,  shall  be  attached  to  the 
respective  instrument  of  cancellation. 

37  par.  2  of  law  57  of  1887. 

In  addition,  in  every  cancellation,  the  notary  shall  make  and  sign 
the  following  note  on  the  original  instrument,  the  cancellation  of 
which  is  in  question,  and  upon  the  copies  of  the  original  instrument 
which  may  be  presented  to  him,  writing  across  the  instrument  and  upon 
the  copies:  "Cancelled,"  as  appears  from  the  instrument  on  file  in  such 
and  such  a  protocol  under  such  a  number. 

Art.  2613.  Instruments  bearing  the  note  of  "cancelled"  have  no 
legal  force,  except  in  cases  in  which  by  virtue  of  a  judgment  having  the 
force  of  a  res  judicata,  the  nullity  of  the  note  is  declared. 

Art.  2614.  The  notaries  shall  issue  to  the  parties  in  interest  certifi- 
cates of  cancellation,  in  order  that  the  registrar  of  public  instruments 
may  in  his  turn  cancel  the  register  or  record  of  the  original  instrument 

Chapter  5. 

Of  the  Archives  of  Notaries  and  Their  Inspection. 

Art.  2615.  Notaries  must  receive  the  archives  of  the  notarial  office 
under  inventory.  A  notary  omitting  this  formality  is  responsible  for 
the  archives  in  accordance  with  the  inventory  under  which  the  last  of 
his  predecessors  received  them,  including  the  increase  which  has  taken 
place  in  the  archives  during  the  term  of  such  predecessor  and  of  the 
notary  whose  responsibility  is  in  question. 


5H 

F  Art.  2616.  In  cases  of  resignation,  removal  or  other  causes  which  do 
not  incapacitate  the  notary  from  personally  delivering  the  archives  to 
the  person  who  is  to  receive  them,  the  delivery  shall  be  made  by  the 
notary  in  person. 

In  cases  of  illness  or  other  grave  excuse,  preventing  the  notary  dis- 
continuing in  office  from  delivering  the  archives  in  person,  and  in  the 
event  of  the  insanity  or  death  of  such  notary,  the  delivery  shall  be  made 
by  the  attorney,  the  guardian,  the  heir  or  the  executor  of  the  said 
notary. 

In  cases  not  exceeding  thirty  days,  it  shall  not  be  necessary  for  the 
notary  to  deliver  the  archives  in  his  charge  under  inventory. 

2619. 

Art.  2617.  The  archives  must  be  received  by  the  notary  who  succeeds 
the  one  going  out  of  office,  and,  in  his  absence,  by  another  notary  desig- 
nated by  the  Prefect  or  Cofregidor,  if  there  should  be  more  than  one 
notary  in  the  territory,  and  otherwise  by  the  secretary  of  the  munici- 
pality. 

37  par.  2,  Law  57  of  1887. 

Art.  2618.  The  delivery  and  the  inventory  must  be  authorized  by  the 
respective  Prefect.  In  the  office  of  the  Prefect  the  original  inventory 
subscribed  by  the  Prefect,  by  the  person  delivering  it  and  by  the  person 
receiving  it,  shall  be  kept,  and  a  copy  of  the  inventory  shall  be  given  to 
the  person  receiving  the  archives  for  preservation  in  the  notarial  office. 

37  par.  2,  law  57  of  1887. 

Art.  2619.  If  a  notary  should  temporarily  cease  in  the  exercise  of  his 
functions  by  reason  of  suspension,  leave  of  absence  for  more  than  thirty 
days,  or  for  any  other  reason,  when  he  again  assumes  charge  of  the 
archives  he  shall  do  so  under  inventory  as  above  prescribed. 

2616  last  par. 

Art.  2620.  Notaries  shall  keep  their  archives  in  the  best  order,  and 
at  the  end  of  the  term  covered  by  the  books,  they  shall  make  an  exact 
and  detailed  inventory  of  the  increase  in  the  archives  during  such  period. 

2564  par.  2,  2571. 

They  shall  take  care  that  the  books  are  not  destroyed  or  deteriorate, 
and  they  shall  be  responsible  for  the  damage  occurring,  unless  they 
fully  prove  that  it  occurred  through  no  fault  or  omission  on  their  part. 

Art.  2621.  The  Prefect  or  Corregidor  shall  make  two  inspections  of 
the  notarial  office  per  year;  one  during  the  latter  half  of  the  month  of 


525 

January,  and  the  other  during  the  latter  half  of  the  month  of  July,  and 
he  may  make  such  extraordinary  inspections  as  he  may  consider  neces- 
sary or  when  so  ordered  by  the  respective  superior. 

The  Prefect  may  visit,  when  he  considers  it  advisable,  and  when  he 
receives  an  order  to  that  effect  from  the  President  of  the  Union,  the 
notarial  offices  in  the  capital  of  the  Territory;  and  when  making  such 
visit  he  shall  extend  it  to  the  notarial  offices  outside  of  the  capital,  with- 
out prejudice  to  visiting  them  at  any  other  times  he  may  consider  advis- 
able, or  when  ordered  to  do  so  by  the  President  of  the  Union.' 

37  par.  2  of  law  57  of  1887.     2622,2623. 

Art.  2622.  The  inspection  shall  be  confined  to  an  examination  of  the 
books  and  documents  of  the  archives,  including  the  inventories  to  be 
made  in  accordance  with  this  chapter,  and  the  order,  neatness  and 
safety  of  the  office ;  to  an  observance  of  the  method  pursued  by  the  notary 
in  the  execution  of  instruments,  and,  finally,  to  an  indication  of  the 
changes  and  improvements  he  can  make  in  accordance  with  law;  and 
to  the  issue  of  the  orders  which  the  inspecting  official  may  consider  neces- 
sary in  the  event  that  he  finds  a  fault  for  which  the  notary  inspected 
is  responsible. 

Art.  2623.  There  shall  be  kept  in  the  notarial  offices  a  book  or  pamph- 
let exclusively  to  be  used  for  memoranda  of  inspections,  which  shall  be 
made  whenever  an  inspection  is  made,  and  which  shall  show  the  date, 
the  condition  in  which  the  inspecting  official  found  the  office,  the  orders 
issued  by  him,  etc.,  being  signed  by  said  official,  the  notary  inspected  and 
the  secretary  of  the  former,  if  he  should  have  any.  A  copy  of  each  mem- 
orandum of  inspection  shall  be  made  for  filing  and  keeping  in  the  archives 
of  the  office  of  the  inspecting  official. 

Chapter  6. 

Fees  of  the  Notary  for  Acts  of  his  Office. 

Art.  2624.  The  fees  which  the  contracting  parties  or  the  persons 
interested  shall  pay  to  the  notary,  shall  be  the  following : 

1 .  Forty  cents  for  the  execution  and  insertion  in  the  protocol  of  any 
instrument,  whatever  be  its  class,  executed  before  the  said  notary,  if 
not  covering  more  than  one  sheet,  and  if  more,  forty  cents  for  each  ad- 
ditional sheet.  The  pages  of  these  sheets  must  contain  twenty-four 
lines,  and  each  line  at  least  eight  words,  and  the  copies  likewise. 

2.  Twenty  cents  for  the  insertion  in  the  protocol  of  any  instrument, 
final  judgment,  will  that  has  not  been  executed  before  a  notary,  pro- 
ceedings relating  to  the  division  and  partition  of  property,  public  sales, 
etc. 


526 

3.  Eighty  cents  for  each  of  the  copies  of  an  instrument  executed  be- 
fore him,  or  in  the  protocol  of  his  office,  if  the  copy  does  not  exceed  one 
sheet,  and  if  so,  forty  cents  for  each  of  the  remaining  sheets. 

4.  Forty  cents  for  the  note  of  the  cancellation  of  any  instrument. 

5.  Forty  cents  for  each  certificate  of  cancellation  of  an  instrument. 
And, 

6.  One  peso  for  attending  the  execution  of  an  act  or  contract  outside 
of  his  office,  when  for  the  reasons  mentioned  in  article  2560  it  is  necessary 
for  the  not&ry  to  do  so.  This  fee  shall  be  double  in  the  event  that  the 
execution  of  the  act  or  contract  takes  place  during  the  hours  of  the 
night  after  eight  P.  M. 

When  the  notary  attends  for  the  execution  of  an  act  or  contract  out- 
side of  his  office,  without  being  under  the  obligation  of  so  doing,  or  be- 
yond the  seat  of  the  circuit  of  the  notarial  office,  he  shall  be  entitled 
only  to  the  fees  fixed  in  subdivision  1 ,  unless  the  parties  shall  have  vol- 
untarily agreed  to  pay  additional  ones. 

2561. 

Art.  2625.  When  by  virtue  of  an  instrument  executed  before  a  notary 
there  is  one  party  conveying  a  right  and  another  accepting  it,  the  party 
making  the  conveyance  shall  pay  the  notarial  fees. 

In  cases  in  which  the  parties  mutually  convey  and  accept,  and  in 
others  not  included  in  the  preceding  paragraph,  the  payment  of  the  fees 
shall  be  made  in  proportionate  quotas,  so  that  all  the  parties  contri- 
bute equally  thereto ;  if  there  be  only  one  party  interested,  that  party 
shall  pay  the  fees.  x 

Art.  2626.  Copies  and  certificates  issued  to  the  parties  shall  be  paid 
for  by  the  party  in  whose  favor  they  are  issued. 

Art.  2627.  The  rules  given  in  the  preceding  articles  are  subject  to  any 
modifications  resulting  from  agreements  between  the  parties,  without 
such  agreements  being  an  obstacle  to  the  notary  charging  the  fees  due 
him  of  the  party  which  is  to  satisfy  them,  in  accordance  with  said  rules. 

Art.  2628.  In  cases  in  which  in  accordance  with  the  rules  established, 
the  payment  of  all  or  any  portion  of  the  fees  pertains  to  the  Fisc,  to  mun- 
icipal corporations  or  charitable  institutions,  the  notary  shall  charge 
neither  all  the  fees  nor  the  respective  portion. 

Nor  shall  the  notary  charge  any  fees  for  the  copies  and  certificates 
issued  in  such  cases  in  favor  of  the  Fisc,  the  municipal  corporations  and 
the  charitable  institutions. 


527 

Chapter  7. 

Manner  of  Substituting  the  Notary  for  Certain  Acts  in  Certain  Places. 

Art.  2629.  In  places  which  are  not  the  seat  of  a  notarial  office,  the 
functions  of  a  notary  shall  be  discharged  by  the  secretary  of  the  munici- 
pal corporation,  in  civil  matters,  in  the  preparation  of  powers  of  attorney 
of  all  kinds,  substitutions  of  powers,  protests  and  other  acts,  where 
delay  would  be  prejudicial,  which  must  be  executed  by  persons  physi- 
cally incapable  from  going  to  the  seat  of  the  notarial  circuit,  and  m  the 
execution  of  contracts  where  the  principal  value  involved  does  not  ex- 
ceed fifty  pesos.  In  such  cases,  the  municipal  secretaries  shall  comply 
with  the  duties  imposed  in  this  Title  upon  notaries,  as  they  must  be  con- 
sidered as  such  when  they  exercise  the  functions  embraced  in  this  article. 

2548. 

The  authority  referred  to  in  the  first  part  of  the  preceding  paragraph 
does  not  cover  testaments,  which  must  be  executed  in  accordance  with 
the  provisions  of  the  Title  Of  the  Execution  of  Testaments. 

Art.  2630.  Instruments  passing  through  the  hands  of  municipal  secre- 
taries which  require  recording  or  registration  in  accordance  with  law, 
shall  be  recorded  in  the  office  of  the  respective  place  as  are' instruments 
of  the  same  character  executed  before  a  notary. 

Art.  2631.  The  respective  Prefect  and  Corregidor  shall  inspect  the 
offices  of  the  municipal  secretaries  in  their  capacity  of  notaries,  at  the 
times  and  in  the  manner  prescribed  for  the  inspection  of  notarial 
offices,  and  shall,  on  such  inspections,  exercise  the  powers  conferred 
upon  them  by  this  Title  in  connection  with  inspections  of  notarial  offices. 

37  par.  2,  of  law  57  of  1887. 

Art.  2632.  The  memorandum  book  and  protocol  to  be  kept  by  the 
municipal  secretaries  in  their  capacity  as  notaries,  shall  also  be  arranged 
by  economic  periods,  in  the  same  manner  as  those  to  be  kept  by  the 
notaries. 

Upon  the  expiration  of  the  respective  period,  the  municipal  secretary 
shall  close  said  books  in  the  same  manner  as  the  notary,  shall  *bind  the 
protocol,  prepare  the  corresponding  index  and  send  it  together*with  the 
respective  memorandum  book  to  the  notary  of  the  circuit  at  the 
end  of  the  month  following  the  expiration  of  the  economic  period. 

2564  par.  2,  2571,  2573- 

Art.  2633.  After  the  notary  shall  have  received  the  protocols  to  be 
sent  to  him  by  the  secretaries  of  the  municipalities,  he  shall  gather  said 
books  in  one  or  more  volumes,  in   a  handy  size  and  form,  and  shall 


528 

archive  and  take  charge  of  them  in  the  notarial  office  together  with  the 
respective  memorandum  books,  in  the  same  manner  as  the  books  origi- 
nally formed  in  the  notarial  office  are  kept. 

2572. 

Art.  2634.  When  the  respective  notary  does  not  receive  the  books 
eight  days  after  the  termination  of  the  month  when  the  secretaries  are 
required  to  transmit  said  books,  he  shall  so  inform  the  respective  Prefect 
or  Corregidor,  in  order  that  such  official  may  issue  the  proper  orders,  or 
shall  advise  the  Prefect  or  Corregidor,  in  a  proper  case,  in  order  that  the 
liability  incurred  by  the  offender  may  be  enforced. 

37  par.  2  of  law  57  of  1887. 

Art.  2635.  The  copies  to  be  issued  and  the  cancellations  to  be  effected 
while  the  books  remain  in  the  power  of  the  municipal  secretaries,  shall 
be  issued  and  made  by  the  latter;  subsequent  ones  shall  be  issued  and 
made  by  the  respective  notary. 

Art.  2636.  In  the  public  instruments  drawn  before  a  municipal  sec- 
retary, in  addition  to  the  formalities  mentioned  in  article  2595,  the 
absence  of  the  full  signature  of  the  municipal  secretary  produces  the 
nullity  of  the  instrument.* 

*  Amended  by  art.  333  of  law  57  of  1887. 


529 


TITLE  XL.III. 

Of  the  Registration  of  Public  Instruments. 

Chapter  i. 

Purpose  of  the  Registration. 

Art.  2637.  The  registration  or  inscription  of  public  instruments  has 
in  view  mainly  the  following  purposes : 

1.  To  serve  as  a  means  of  transferring  the  ownership  of  real  property 
and  of  other  real  rights  therein,  which  have  been  mentioned  in  Chapter 
3,  Title  Of  Tradition. 

2.  To  give  publicity  to  the  acts  or  contracts  transferring  or  changing 
the  ownership  of  such  real  property,  or  imposing  charges  or  limitations 
upon  the  ownership  of  the  same,  making  it  possible  for  all  to  ascertain 
the  state  or  situation  of  the  immovable  property;  and 

3.  To  give  a  greater  guarantee  of  authenticity  and  security  to  the 
titles,  acts  or  documents,  the  registration  of  which  is  required,  provid- 
ing for  the  intervention  of  a  large  number  of  officials  in  their  preparation 
and  custody,  and  thus  avoiding  the  dangers  to  which  they  would  be  sub- 
ject if  such  acts,  titles  and  documents  were  recorded  in  one  office  only. 

Chapter  2. 

Registration  Office  and  Duties  of  the  Official  in  Charge  Thereof. 

Art.  2638.  In  the  capitals  of  the  Territories  and  in  other  places  where 
there  is  a  notary,  the  functions  of  the  registrar  of  public  instruments 
shall  be  dicsharged  by  the  secretary  of  the  Prefect  or  of  the  respective 
Corregidor. 

11,  12  of  law  14  of  1887.     6  of  law  46  of  1887.     37  of  law  57  of 

1887. 

Art.  2639.  The  provisions  of  the  preceding  title  are  extended  to 
embrace  the  registrar  of  public  instruments,  with  regard  to  the  qualifi- 
cations necessary  to  obtain  the  office ;  the  term  of  office ;  the  prohibition 
of  taking  charge  of  the  private  or  official  management  of  the  business  of 
others ;  the  grant  of  leaves  of  absence  and  the  admission  of  resignations 
and  excuses;  all  that  is  said  regarding  the  notary  in  such  provisions 
being  understood  to  apply  to  the  registrar. 

"      2553,  2554,  2557,  2556,  2555,  2558,  2559,  2549  pars.  2  and  3. 


53Q 

Art.  2640.  The  following  are  the  duties  of  the  registrar : 

1.  Punctual  attendance  at  the  office  on  working  days  and  during  the 
hours  which  the  respective  Prefect  or  Corregidor  may  fix.  The  regis- 
trar shall  inform  the  public  by  notices  of  the  hours  fixed,  and  shall  be 
liable  to  the  parties  or  persons  interested  for  such  damages  as  may  be 
incurred  through  a  failure  to  record  in  due  time  the  deeds  filed  for  regis- 
tration, if  such  failure  be  due  to  the  absence  of  the  registrar  during  the 
office  hours  fixed,  or  to  another  act  chargeable  to  him. 

37  par.  2,  law  57  of  1887. 

2.  To  record  the  titles  and  acts  and  keep  the  books  prescribed  by  law 
for  such  records. 

3.  To  furnish  the  official  information  and  reports  requested  of  him 
by  public  officials,  with  regard  to  the  records  upon  the  books  of  the 
office,  as  to  matters  of  interest  to  the  Union,  the  municipal  corporations 
and  the  institutions  supported  and  maintained  from  public  funds. 

4.  To  certify,  in  accordance  with  the  respective  books,  to  the  state 
or  situation  of  the  real  property  in  the  place,  with  regard  to  which  the 
persons  interested  desire  information ;  that  is,  who  is  the  owner  of  the 
real  property  or  properties;  the  freedom  from  liens  or  charges  and  limi- 
tations upon  the  ownership  of  the  property,  and  other  facts  which  are 
of  record. 

The  certificates  which  may  be  issued  by  the  registrar  must  be  clear 
and  detailed ;  they  shall  contain  the  years  to  which  they  correspond  and 
a  statement  of  the  books  referred  to  in  their  preparation  and  issue ;  and 

2651. 

5.  Such  other  duties  as  the  law  may  prescribe. 

6  law  34  of  1887.     39  par.  2,  43,  law  57  of  1887.  r 

Chapter  3. 
Books  to  be  Kept  by  the  Registrar. 

Art.  2641.  The  registrars  shall  keep  separately  the  following  books : 

1.  One  entitled  Register  No.  1,  for  the  recording  of  instruments  trans- 
ferring, modifying,  encumbering  or  limiting  the  ownership  of  real  prop- 
erty, or  which  change  the  right  to  administer  the  same. 

2.  Another  called  Register  No.  2,  for  the  recording  of  the  titles,  acts 
or  documents  which  require  registration  and  are  not  included  in  the 
classifications  made  in  the  preceding  and  in  the  following  subdivisions. 

3.  Another  entitled  Register  of  Mortgages,  for  the  recording  of  instru- 
ments legally  -constituting  mortgages. 

1,  law  34  of  1887.     2668.     38  to  43  of  law  57  of  1887. 


53i 

Art.  2642.  If,  during  the  respective  term,  one  single  volume  or  book 
of  convenient  size  should  not  be  sufficient  for  the  inscriptions  in  each 
book  to  be  kept  by  the  registrar  during  such  term,  the  number  of 
volumes  may  be  increased,  in  which  event  they  shall  be  numbered,  1,  2, 
etc.,  of  Register  No.  1  or  No.  2,  or  of  the  Register  of  Mortgages,  corres- 
ponding to  such  or  such  a  period. 

Art.  2643.  In  connection  with  each  of  the  three  registers  mentioned, 
there  shall  be  kept  another  which  shall  be  the  index  to  the  respective 
register.  —  _ 

Art.  2644.  The  folios  of  the  index  to  Register  No.  1,  shall  be  divided 
into  five  columns.  There  shall  be  stated  in  the  first  column,  in  alpha- 
betical order,  the  name  or  names  of  the  real  property  the  subject-matter 
of  the  instrument  recorded  in  the  respective  section  of  the  register ;  in 
the  second,  the  names  and  surnames  of  the  contracting  or  principal 
parties ;  in  the  third,  the  character  or  nature  of  the  act  or  contract ;  in  the 
fourth,  the  corresponding  folio  of  the  register  shall  be  stated;  and  the 
fifth  shall  be  used  for  the  purpose  of  recording  the  changes  or  modifica- 
tions which  may  be  made  in  the  instrument  registered,  such  as  its  cancel- 
lation and  similar  facts. 

Art.  2645.  The  folios  of  the  index  to  Register  No.  2,  shall  be  divided 
into  four  columns,  and  shall  contain :  the  first,  the  surnames  in  alphabet- 
ical order,  and  the  names  of  the  contracting  or  interested  parties;  the 
second,  a  describtion  of  the  instrument  recorded ;  and  the  third,  a  cita- 
tion or  reference  to  the  corresponding  folio  of  the  Register.  The  purpose 
of  the  fourth  column  shall  be  the  same  as  that  of  the  fifth  of  Book  1 . 

Art.  2546.  The  folios  of  the  record  index  shall  be  kept  according  to 
places,  following  their  alphabetical  order.  Each  folio  shall  be  divided 
into  five  columns.  In  the  first  column  shall  be  placed,  also  in  alphabeti- 
cal order,  the  names  of  the  estates  mortgaged ;  in  the  second,  their  loca- 
tion ;  in  the  third,  the  names  and  surnames  of  their  owners ;  in  the 
fourth,  a  reference  to  the  folio  of  the  record  book ;  and  in  the  fifth,  any 
modification  which  the  instrument  recorded  may  suffer,  such  as  its 
cancellation  or  other  statements. 

Art.  2647.  The  indices  to  Book  1  and  2  must  be  concluded  not  later 
than  the  last  day  of  the  month  immediately  following  the  month  con- 
cluding the  term  which  the  principal  books  cover. 

The  index  of  the  record  book  shall  be  formed  from  day  to  day  in  rough 
form  at  least,  but  must  be  made  in  clean  form  during  the  month  men- 
tioned in  the  preceding  paragraph. 

Art.  2648.  The  three  principal  registers  and  the  record  book  and  the 
indices,  shall  be  bound  and  shall  contain  such  number  of  sheets  as  may 
be  considered  necessary  for  the  transactions  to  be  entered  therein  during 
the  term  they  cover. 

The  principal  books  must,  in  addition,  be  folioed  and  shall  be  rubri- 
cated on  each  sheet  by  the   Prefect  of  the  place  of  registration;  said 


532 

Prefect  shall  state  at  the  beginning  of  the  book  over  his  full  name,  the 
purpose  to  which  the  book  is  devoted,  and  the  number  of  sheets  of  which 
it  consists. 

37  par.  2  of  law  57  of  1887. 

Art.  2649.  The  term  of  duration  or  service  of  the  books  to  be  kept 
by  the  registrars,  shall  be  the  same  as  that  of  the  books  of  the  notarial 
offices. 

2571. 

Art.  2650.  The  principal  books  of  the  registrars  are  closed,  as  are 
those  of  the  notaries,  by  a  statement  signed  by  the  respective  Prefect, 
stating  the  number  of  records  contained  in  each  volume. 

2573,  37  par.  2  of  law  57  of  1887. 

Art.  2651.  Registrars  shall  not  deliver  to  private  parties  the  books 
of  the  office,  not  even  for  the  purpose  of  examining  them,  unless  it 
be  done  under  the  immediate  and  special  surveillance  of  the  registrar, 
without  the  books  being  permitted  to  be  taken  from  the  office  in  which 
they  are  kept. 

2640  Nos.  3  and  4. 

Chapter  4.' 

Titles,  Acts  and  Documents  Subject  to  Registration. 

Art.  2652.  The  following  acts,  titles  and  instruments  are  subject  to 
registration  or  inscription  : 

1 .  Every  contract  or  act  inter  vivos,  which  causes  the  change  or  trans- 
fer of  the  ownership  of  real  property,  such  as  donations,  sales,  exchanges, 
and  agreements. 

2.  Every  final  decision  which  has  been  carried  into  effect  and  rendered 
in  civil  matters,  whether  rendered  by  a  Judge  or  court  of  law,  or  by  arbi- 
trators, and  the  protocolled  decisions  of  the  arbitrators,  especially  the 
judgments  and  decisions  which  cause  a  change  or  transfer  of  the  owner- 
ship of  real  property,  or  which  are  declaratory  of  some  right  in  such  real 
property. 

The  registration  of  final  judgments  is  not  necessary  by  Corregidores 
in  civil  matters  under  their  jurisdiction,  unless  by  virtue  thereof  a  change 
dr  transfer  of  the  ownership  of  real  property  or  of  real  rights  therein 
is  effected. 

3.  Mortgage  deeds. 

4.  Instruments  constituting  in  real  property  any  of  the  rights  of 
usufruct,  use,  habitation,  servitudes,  or  any  other  lien  or  charge,  and 


533 

generally  instruments  which  place  limitations  upon  the  ownership  of 
real  property. 

5.  Testaments. 

6.  Judicial  decisions  or  approvals  of  the  partition  of  inheritances, 
especially  those  involving  real  property. 

7.  Proceedings  in  connection  with  the  public  sale  of  real  property. 

8.  Records  of  mines. 

9.  Titles  of  privileges. 

10.  Any  document  drawn  before  or  filed  in  the  protocol  of  a  notary. 

11.  The  cancellation  of  any  instrument  which  may  have  been  regis- 
tered; and 

12.  vSuch  other,  titles,  acts  and  documents,  with  regard  to  which  the 
formality  of  registration  is  prescribed  by  law. 

39,  41,  42,  43  of  law  57  of  1887.     1,  6  of  law  34  of  1887.     99  of 
law  153  of  1887. 

Art.  2653.  The  registration  or  inscription  of  acts  transferring  the 
ownership  of  real  property,  mortgage  deeds  and  other  instruments 
relating  to  real  property,  mentioned  in  the  preceding  article,  shall  take 
place  in  the  office  of  registration  of  the  place  where  the  real  property  is 
situated ;  and  if  the  real  property  be  located  in  more  than  one  registra- 
tion district,  the  record  shall  be  made  in  the  offices  of  the  districts  in 
which  the  real  property  is  situated. 

If  the  instrument  should  refer  to  two  or  more  estates,  each  situated 
in  a  different  district,  it  must  be  recorded  in  each  of  the  offices  of  the 
district  to  which  the  real  property  corresponds. 

97  of  law  153  of  1887.     2,  3  of  law  34  of  1887. 

Art.  2654.  If,  by  virtue  of  an  act  of  partition,  real  property,  or  a 
portion  thereof,  which  was  formerly  held  pro  indiviso,  is  adjudicated  to 
various  persons,  natural  or  juristic,  the  act  of  partition,  in  so  far  as  it 
relates  to  each  estate  or  to  each  party  to  whom  adjudicated,  shall  be 
registered  in  the  office  or  offices  of  the  district  or  districts  to  which  the 
real  property  may  correspond,  by  reason  of  its  location,  or  the  part 
thereof  which  has  been  awarded  to  each  participant. 

Art.  2655.  The  titles,  acts  and  instruments  the  registration  of  which 
is  obligatory  and  which  are  not  included  in  the  two  preceding  articles, 
shall  be  recorded  in  the  office  of  the  district  in  which  they  may  have 
been  executed  or  contracted. 

97  of  law  153  of  1887. 

Art.  2656.  Whenever  the  name  of  a  rural  estate  is  changed,  the 
person  making  the  change  is  under  the  obligation  of  so  informing  the 
registrar  or  registrars  of  the  district  or  districts  in  which  the  estate  may 


534 

be  situate,  in  order  that  the  change  may  be  recorded.  This  obligation 
must  be  fulfilled  before  the  expiration  of  twenty  days  after  such  name 
shall  be  made  use  of  in  a  public  or  official  document,  or  in  some  public  or 
official  proceeding  or  act,  and  not  later. 

The  same  obligation  is  imposed  upon  the  co-owners  or  participants 
in  a  rural  estate,  divided  or  partitioned,  with  regard  to  the  new  names 
which  the  parties  may  have  given  to  the  portions  falling  to  them. 

Persons  not  complying  with  the  obligation  prescribed  in  the  two  pre- 
ceding paragraphs,  shall  incur  a  fine  of  twenty-five  pesos  which  shall  be 
imposed  by  the  Prefect  or  Corregidor,  when  on  inspecting  the  notarial  or 
registrar's  offices,  or  in  any  other  manner,  they  shall  have  knowledge 
of  the  omission,  or  the  Judge  or  Court  having  the  same  information; 
this  is  without  prejudice  to  making  a  record  of  the  change  of  name,  at 
the  cost  of  the  person  or  persons  who  may  have  made  it. 

2666.     37  par.  2  of  law  57  of  1887. 


Chapter  5. 

Manner  of  Making  the  Registration. 

Art.  2657.  For  the  purpose  of  effecting  the  registration,  there  shall 
be  exhibited  to  the  registrar  an  authentic  copy  of  the  title  or  document, 
or  of  the  judicial  judgment  or  decree,  in  a  proper  case. 

2667.     1  law  34  of  1887.     99  of  law  153  of  1887.     39,  42  of  law 
57  of  1887. 

Art.  2658.  Every  title  or  document  presented  for  record  must  state 
clearly  the  name,  surname  and  domicile  of  the  parties;  the  name,  the 
location,  the  boundaries  and  the  value  of  the  estates,  and  other  circum- 
stances which  may  contribute  to  give  a  perfect  understanding  of  the 
act  or  contract. 

2594  and  citations,  2665. 

Art.  2659.  The  record  or  inscription  shall  begin  with  the  date  of  the 
day  thereof  and  shall  state : 

1 .  The  nature  and  date  of  the  deed  or  instrument. 

2.  The  names,  surnames  and  domiciles  of  the  parties;  or  of  those 
who  as  attorneys  in  fact  or  legal  representatives  request  the  registra- 
tion. Juridical  persons  shall  be  designated  by  their  legal  denomina- 
tion or  their  popular  name,  and  by  the  place  of  their  establishment ;  and 
what  has  been  said  heretofore  of  attorneys  in  fact  and  legal  representa- 
tives of  natural  persons,  is  extended  to  apply  to  the  representatives  of 
juridical  persons. 


535 

3«  The  designation  of  the  thing,  as  it  appears  in  the  title  or  document. 
And 

4.  The  office  or  archives  in  which  the  original  title  or  document  may 
be  filed. 

The  record  shall  be  closed  with  the  full  signature  of  the  registrar. 

2658.     See  citations  to  articles  2657,  2667  to  2670. 

Art.  2660.  The  record  or  inscription  of  a  testament  shall  include  the 
date  of  its  execution  and  its  character,  it  being  necessary  to  state  the 
name  of  the  notary  before  whom  it  may  have  been  drawn,  if  executed 
before  a  notary;  the  name,  surname  and  domicile  of  the  testator;  the 
names  and  surnames'of  the  heirs  and  legatees,  stating  the  quota  of  the 
former,  that  is  to  say,  whether  they  have  been  constituted  heirs  of  all 
or  of  a  part  only,  such  as  one-half,  one-third,  ont-quarter  or  one-fifth  of 
the  liquidated  estate,  and  with  regard  to  the  legatees,  the  character  or 
nature  of  the  respective  bequests. 

2657,  2658. 

Art.  2661.  The  record  of  a  judgment  or  decision  shall  include  its 
date,  the  designation  of  the  superior  or  inferior  court,  Prefect  or  Corregi- 
dor  who  may  have  rendered  it,  and  the  names  of  the  arbiters  or  arbitra- 
tors, and  a  literal  copy  of  the  adjudging  portion  thereof. 

2657,  2658. 

Art.  2662.  The  record  of  a  legal  act  of  partition  shall  include  the 
date  of  such  act,  the  name  and  surname  of  the  partitioner  or  partition- 
ed, and  the  designation  of  the  respective  parts.  The  records  or  in- 
scriptions referred  to  in  this  article  and  the  two  preceding,  shall  conform 
otherwise  to  the  provisions  of  article  2659. 

2657,  2658. 

Art.  2663.  The  record  .or  inscription  of  a  mortgage  must  contain: 

1.  The  date  on  which  the  registration  is  made. 

2.  The  names,  surnames  and  domiciles  of  the  creditor  and  of  the 
debtor,  the  provisions  of  subdivision  2  of  article  2636  being  observed 
in  these  designations. 

3.  The  date  and  nature  of  the  contract  giving  rise  to  the  mortgage, 
and  the  archives  where  it  is  filed. 

If  the  mortgage  shall  have  been  constituted  in  an  instrument  separate 
from  the  contract,  the  date  of  the  contract  shall  also  be  stated  and  the 
archives  containing  the  instrument  evidencing  such  contract. 

4.  The  name  and  situation  of  the  estate  mortgaged;  its  boundaries 
and  all  the  notes  and  indications  by  which  the  same  may  be  known. 


536 

If  the  estate  mortgaged  be  a  rural  one,  its  situation  may  be  expressed, 
and  if  located  in  more  than  one  place,  they  shall  all  be  stated. 

If  the  estate  mortgaged  be  an  urban  one,  the  place  and  street  of  its 
location  shall  be  expressed. 

5.  The  specific  sum  involved  in  the  mortgage,  provided  it  is  confined 
to  a  specific  sum,  and 

6.  The  full  name  of  the  registrar. 

Art.  2664.  The  registration  shall  not  be  annulled  on  account  of  the 
absence  of  one  or  more  of  the  designations  prescribed  in  the  preceding 
articles  of  this  chapter,  provided  that  from  the  record  or  from  the  title, 
the  subject  matter  of  the  record,  it  is  possible  to  ascertain  what  said 
record  may  fail  to  state ;  but  the  absence  of  the  signature  of  the  Regis- 
trar does  void  the  record  where  this  lack  appears. 

2658  to  2662. 

Art.  2665.  However,  the  record  of  a  mortgage  or  of  the  constitution 
of  any  other  charge  or  limitation  of  ownership  upon  real  estate  shall  not 
be  valid,  when  the  circumstances  mentioned  in  article  2663  shall  not 
have  been  stated  clearly ;  this  shall  also  apply  to  the  registration  of  the 
mortgage  on  a  part  of  an  estate  held  pro  indiviso,  as  in  such  case  the 
designation  of  the  name,  situation  and  boundaries  must  be  made  by 
expressing  that  of  the  entire  estate,  and  making  a  note  that  the  part 
mortgaged  corresponds  to  the  said  estate  held  pro  indiviso. 

When  a  mortgage  deed  or  any  instrument  imposing  any  charge  upon 
or  limitation  of  the  ownership  of  real  property,  lacking  the  designations 
referred  to  in  the  preceding  paragraph,  shall  be  presented  to  the  regis- 
trar for  record,  he  shall  not  record  it. 

Nor  shall  a  mortgage  deed  be  recorded  if  presented  after  the 
twentieth  day  from  the  date  of  the  execution  of  the  deed. 

2,  3  of  law  34  of  1887.     43  of  law  57  of  1887. 

Art.  2666.  The  record  of  the  change  of  the  name  of  a  rural  estate, 
shall  be  effected  by  making  an  entry  in  Register  No.  1  of  the  change ; 
this  entry  shall  be  subscribed  by  the  person  making  the  change  and  the 
respective  registrar.  Said  registrar  shall  make  mention  of  the  changes 
in  the  respective  indices,  by  means  of  notes  in  the  places  where  the 
indices  refer  to  the  estate  the  name  of  which  may  have  been  changed, 
and  in  records  which  may  thereafter  be  made  regarding  such  estate, 
the  registrars  shall  take  care  to  mention  both  names  of  the  estate, 
expressing  first  the  new  name  given  to  the  estate,  and  thereafter  the 
name  it  had  previously,  the  latter  being  preceded  by  the  adverb  alias 

2656. 


537 

Art.  2667.  Whenever  a  right  already  registered  is  transferred,  the 
preceding  record  shall  be  mentioned  in  the  new  one.  In  order  to  facili- 
tate the  operation,  the  respective  person  interested  shall  present  to  the 
registrar  the  copy  or  certified  transcript  of  the  instrument  which 
should  contain  a  memorandum  of  the  previous  record. 

Art.  2668.  Every  instrument  involving  two  or  more  acts  or  contracts 
which  from  their  nature  call  for  registration  in  different  books,  shall 
require  a  record  to  be  made  in  each  of  such  books  of  the  respective  act 
or  contract.  If,  for  example,  the  instrument  relates  to  the  alienation 
of  real  property  and  to  the  constitution  of  a  mortgage,  a  record  shall  be 
made  in  Register  No.  1  of  the  alienation  of  the  real  property  and  in  the 
mortgage  record  book,  of  the  constitution  of  the  mortgage. 

Art.  2669.  Upon  the  record  of  inscription  of  a  title  having  been  made 
and  the  statement  which  must  be  written  in  the  respective  book  or 
books  having  been  signed,  the  registrar  shall  make  a  note  at  the  foot 
of  the  instrument,  stating  the  date  of  its  record  or  inscription,  and  the 
folio  or  folios  of  the  book  or  books  in  which  the  entry  appears  in  accord- 
ance with  the  preceding  article.  The  note  shall  be  signed  with  the  full 
name  of  the  registrar,  and  thereupon  the  instrument  shall  be  returned 
to  the  person  or  persons  interested. 

Art.  2670.  If  after  an  instrument  shall  have  been  recorded  for  the 
first  time,  new  copies  thereof  should  be  presented  for  inscription  or 
record,  it  shall  not  be  necessary  to  make  another  memorandum  of  regis- 
tration, unless  the  parties  in  interest  shall  expressly  so  request;  when 
they  do  not  make  this  request,  the  registrar  shall  confine  himself  to 
putting  upon  the  copy  presented  a  note  of  the  registration  with  reference 
to  the  original  record,  and  making  an  entry  in  the  respective  column  of 
the  index  for  the  purpose  of  showing  the  variations  or  modifications 
which  the  titles  recorded  have  suffered. 

In  every  case  the  registrar  shall  be  entitled  to  the  emoluments 
allowed  him  for  the  record  or  inscription. 

2671.     44  of  law  57  of  1887. 

Chapter  6. 

Fees  0}  the  Registrar. 

Art.  2671.  Registrars  shall  receive  the  following  fees  or  emoluments, 
which  shall  be  paid  by  the  respective  persons  interested : 

1 .  Forty  cents  for  each  record  made  in  their  books. 

2.  Forty  cents  for  an  entry  cancelling  an  instrument. 

3.  Eighty  cents  for  any  certificate  issued. 

4.  Five  cents  for  the  examination  of  each  of  the  books  to  be  examined 
for  the  issue  of  a  certificate ;  but  such  charge  shall  not  be  made  when  the 
request  for  the  certificate  states  the  year ;  and 


538 

5.  Ten  cents  for  the  examination  of  each  book,  when  the  persons 
interested  desire  to  obtain  private  information. 

44  of  law  57  of  1887. 

Art.  2672.  The  provisions  contained  in  articles  2625  to  2628  are 
made  to  extend  to  registrars. 

Chapter  7. 
Effects  of  Registration. 

Art.  2673.  None  of  the  instruments  subject  to  registration  or  inscrip- 
tion shall  be  admissible  as  evidence  in  court  nor  before  any  public  au- 
thority, official  or  employee,  if  it  has  not. been  inscribed  or  recorded  in 
the  respective  office  or  offices,  in  accordance  with  the  provisions  of  this 
Code. 

Art.  2674.  No  instrument  subject  to  registration  shall  have  any 
effect  as  to  third  persons  before  the  date  of  the  inscription  or  registra- 
tion thereof. 

Art.  2675.  When  the  loss  of  the  protocol  or  the  record  and  papers  of 
a  case  containing  the  original  registered  instrument  shall  be  established 
and  the  respective  person  interested  shall  not  have  in  his  possession  the 
legalized  copy  of  the  instrument,  nor  shall  there  be  a  full  copy  of  the 
latter  in  papers  kept  in  any  public  office,  the  certificate  issued  by  the 
registrar  regarding  the  point  or  points  appearing  upon  the  register,  with 
regard  to  those  contained  in  the  original  lost  instrument,  shall  be  ad- 
mitted as  suppletory  proof:  such  certificate  shall  not  be  issued  by 
the  registrar  except  on  the  order  of  a  competent  authority. 

Chapter  8. 

Cancellation  of.  the  Record. 

Art.  2676.  The  cancellation  of  a  record  or  inscription  is  the  act  by 
virtue  of  which  it  is  declared  that  the  record  or  inscription  is  null  and 
void  by  reason  of  the  cancellation  also  of  the  instrument  which  gave 
rise  to  the  record  or  inscription. 

2610. 

Art.  2677.  In  order  that  the  registrar  may  consider  a  record  or 
inscription  cancelled,  there  must  be  presented  to  him  the  certificate  or 
cancellation  of  the  instrument  the  subject  of  the  record.  This  certifi- 
cate shall  be  issued  by  the  official  in  whose  office  the  original  instrument 
inscribed  or  recorded  is  filed  or  cared  for. 

2614. 


539 

Art.  2678.  The  cancellation  of  a  record  or  inscription  shall  be 
effected  by  making  a  memorandum  in  the  margin  opposite  the  inscrip- 
tion or  record,  as  follows :  ' '  Cancelled  as  appears  from  such  folio  or  folios 
of  the  current  book  of  cancellations;"  this  memorandum  shall  be  closed 
with  the  proper  date  and  the  full  signature  of  the  registrar. 

The  book  of  cancellations  is  the  book  to  be  formed  with  the  certifi- 
cates of  cancellation  referred  to  in  the  preceding  article,  a  book  which 
shall  be  folioed  consecutively,  and  which  shall  be  sewn  together  on  the 
termination  of  the  term  of  the  principal  books,  and  bound  when  the  size 
thereof  is  in  proportion.  This  book  shall  be  the  evidence  of  the  cancel- 
lations which  the  Registrar  may  make. 

2614,  2679. 

Art.  2679.  Whenever  the  cancellation  of  a  record  or  inscription  shall 
be  made,  the  cancellation  shall  be  noted  in  such  parts  of  the  indices 
where  the  latter  refer  to  the  original  record,  the  notes  being  made  in  the 
columns  of  the  indices  set  aside  for  the  purpose. 

Art.  2680.  If  the  persons  interested  should  request  it,  the  Registrar 
shall  give  them  a  certificate  of  the  cancellation  of  the  respective  record 
or  records. 

Art.  2681.  A  cancelled  record  or  inscription  has  no  legal  force,  unless 
a  decision  partaking  of  res  judicata  shall  declare  the  nullity  of  the  cancel- 
lation. Such  nullity  shall  be  considered  declared  as  of  right  when  the 
cancellation  of  the  record  or  inscription  shall  have  been  due  to  the  can- 
cellation of  the  original  instrument,  and  the  latter  shall  have  been 
declared  null  by  a  decision  partaking  of  res  judicata. 

2613,  2614. 

Chapter  9. 

Archives  of  the  Registrar's  Office:  its  inspections. 

Art.  2682.  With  regard  to  the  archives  of  the  Registrar's  office  and 
the  inspections  to  be  made  thereof,  the  provisions  contained  in  Chapter 
5,  Title  Of  Notaries  Public  are  extended  to  the  same. 


540 

TITLE  XLIV. 

Observance  of  this  Code. 

Art.  2683.  The  present  Code  shall  go  into  operation  from  the  date  of 
its  publication,  and  from  that  time  all  former  substantive  laws  and  pro- 
visions on  civil  matters  of  the  jurisdiction  of  the  Union  are  repealed, 
whether  or  not  contrary  to  the  provisions  contained  in  this  Code. 

Consequently,  controversies  and  litigation  over  acts  executed,  rights 
acquired,  obligations  contracted,  or  contracts  celebrated  since  the  date 
of  such  publication  relating  to  the  said  matters,  shall  be  decided  in  ac- 
cordance with  the  provisions  of  this  Code ;  but  contrpversies  and  litiga- 
tion over  acts  and  contracts  prior  to  the  publication  of  this  Code,  shall 
be  decided  in  accordance  with  the  substantive  laws  which  were  in  force 
when  the  act  was  executed,  the  right  acquired,  the  obligation  con- 
tracted or  the  contract  celebrated. 

15  of  law  153  of  1887. 

Art.  2684.  The  citation  of  the  provisions  of  the  National  Codes  shall  be 
made  as  follows:  "A.  (Article,  Chapter  or  Title  blank,  C.  C.  (Civil  Code); 
C.  Co.  (Code  of  Commerce)  ;C.  P.  (Penal  Code) ;  C.  A.  (Administrative 
Code) ;  C.  F.  (Fiscal  Code) ;  C.  M.  (Military  Code) ;  C.  J.  (Judicial  Code) ; 
C.  Fo.  (Code  of  Fomento) ;"  and  in  the  same  manner  any  others  which 
may  be  issued  hereafter,  the  words  placed  herein  between  parentheses 
being  omitted  in  the  citations. 


ADDITIONAL 


AND 


AMENDATORY   LAWS 


543 

LAW  57  OF  1887. 

(April  15) 

On  the  Adoption  of  Codes  and  the  Unification  of  the  National 

Legislation. 

The  National  Legislative  Council 

Decrees: 

Art.  1.  Ninety  days  after  the  publication  of  this  law,  there  shall 
govern  in  the  Republic,  with  the  additions  and  amendments  treated  here- 
in, the  following  Codes : 

The  Civil  Code  of  the  Nation,  sanctioned  on  May  26,  1873. 

The  Code  of  Commerce  of  the  extinguished  State  of  Panama,  sanc- 
tioned October  12,  1869;  and  the  National  Code  on  the  same  subject, 
edition  of  1884,  which  regulates  maritime  commerce  only.* 

The  Penal  Code  of  the  extinguished  State  of  Cundinamarca,  sanc- 
tioned on  October  16,  1858. 

324,  law  153  of  1887. 

The  Judicial  Code  of  the  Nation,  sanctioned  in  1872,  and  amended  by 
law  76  of  1873,  edition  of  1874. 

The  Fiscal  Code  of  the  Nation,  and  the  laws  and  decrees  having  the 
force  of  law  relative  to  the  organization  and  administration  of  the 
national  revenues.     And 

The  National  Military  Code  and  the  laws  supplementary  to  and 
amendatory  thereof: 

Art.  2.  The  terms  Territory,  Prefect,  Union,  United  States  of 
Colombia,  President  of  the  State,  used  in  the  Civil  Code,  shall  be  under- 
stood to  apply  to  the  new  constitutional  entities  or  officials,  as  the  case 
may  require. 

324,  law  153  of  1887. 

Art.  3.  In  the  Code  of  Commerce  of  Panama,  Republic  shall  be  under- 
stood where  the  State  of  Panama  is  spoken  of,  and  the  references  made 
in  said  Code  to  the  laws  of  the  same  State,  shall  be  understood  as  made 
to  the  corresponding  provisions  of  the  National  Codes. 

324,  law  153  of  1887. 

*  Law  153  of  1887,  article  325,  says:  "The  authentic  text  of  the  Code  of  Commerce 
adopted  by  law  57  of  1887,  is  that  contained  in  the  edition  of  1874." 


544 


ADDITIONS  TO  AND  AMENDMENTS  OF  THE  CIVIL 

CODE. 

PRELIMINARY  TITLE. 

Art.  4.  In  accordance  with  article  52  of  the  Constitution  of  the  Re- 
public, Title  III  (arts.  19-52)  of  the  said  Constitution  is  declared  incor- 
porated in  the  Civil  Code.* 

Chapter  i. 

Of  the  Law. 

See  First  Part  of  law  153  of  1887. 

Art.  5.  When  incompatibility  exists  between  a  constitutional  pro- 
vision and  a  legal  one,  the  former  shall  be  preferred. 

6,  law  153  of  1887. 

If  in  the  Codes  adopted  there  be  any  provisions  incompatible  with 
each  other,  the  following  rules  shall  be  observed  in  their  application: 

1 .  A  provision  relating  to  a  special  matter,  is  preferred  to  one  having 
a  general  character. 

2.  When  the  provisions  have  a  similar  special  or  general  character,  and 
are  embodied  in  the  same  Code,  the  provision  included  in  the  later 
article  shall  be  preferred ;  and  if  they  should  be  in  different  Codes,  the 
following  order  of  preference  shall  be  observed  with  regard  thereto: 
Civil  Code,  Code  of  Commerce,  Penal  Code,  Judicial  Code,  Administra- 
tive Code,  Fiscal  Code,  Code  of  Elections,  Military  Code,  Police  Code, 
Code  of  Fomento,  Code  of  Mines,  of  Beneficence  and  of  Public  Instruc- 
tion. 

49  of  law  153  of  1887. 

Chapter  2. 

Definition  of  Various  Words  of  Frequent  Use  in  the  Laws. 

Art.  6.  Legitimate  children  are  called  those  conceived  during  the 
real  or  putative  marriage  of  their  parents,  which  produces  legal  effects, 
and  those  legitimated  by  the  marriage  of  the  same,  subsequently  to  the 
conception. 

*  This  Title  of  the  Constitution  has  been  incorporated  in  this  translation  in  its 
proper  place. 


545 

All  others  are  illegitimate. 
52  law  153  of  1887. 

Art.  7.  Natural  children  are  called  those  begotten  out  of  wedlock,  of 
persons  who  could  marry  each  other  at  the  time  of  the  conception,  whose 
children  have  been  acknowledged  by  their  father  or  mother,  or  by  both , 
in  a  public  instrument,  or  by  a  testamentary  act,  or  in  accordance  with 
article  368  of  the  Code. 

Notwithstanding  the  provisions  of  the  preceding  paragraph,  natural 
children  shall  be  considered,  as  to  the  mother,  and  for  all  civil  effects, 
those  conceived  by  a  woman  who  could  freely  marry  at  the  time  of 
conception. 

54  to  58,  law  153  of  1887. 

Art.  8.  The  degrees  of  relationship  to  which  the  last  part  of  article 
52  refers,  with  respect  to  incestuous  children,  are  those  of  the  parents 
in  a  direct  line  of  consanguinity,  or  in  the  first  degree  of  the  direct  line 
of  affinity,  or  in  the  second  transverse  line  of  consanguinity. 


BOOK  FIRST. 
OF  PERSONS. 

TITLE  I. 

Of  the  Beginning  and  End  of  Persons. 

Chapter  i. 
Art.  9.  The  existence  of  persons  terminates  by  death. 

Chapter  2. 

Of  the  Presumption  of  Death  by  Disappearance. 

Art.  10.  By  virtue  of  the  absolute  possession  referred  to  in  article 
105  of  the  Code,  the  restrictions  imposed  by  article  103  cease. 


546 

TITLE  II. 

Of  Marriage. 

Art.  i  i .  Marriage  may  be  contracted  not  only  with  both  contracting 
parties  present,  but  also  by  a  special  proxy  constituted  before  a  Notary 
public  by  the  male,  in  the  absence  of  the  latter,  it  being  necessary  that 
the  woman  with  whom  the  marriage  is  to  be  contracted  be  mentioned 
in  the  power.  The  power  is  revocable,  but  the  revocation  shall  have 
no  effect  if  the  contracting  woman  be  not  notified  thereof  before  cele- 
brating the  marriage. 

Art.  12.  Marriages  celebrated  in  accordance  with  the  rites  of  the 
Catholic  Church  are  valid  for  all  civil  and  political  purposes. 


i,  law  153  of  1887.     34  to  36,  law  30  of  1888. 


19.     21,  50 


TITLE  III. 
Ot  the  Nullity  of"  Marriage  and  its  Effects. 

Art.  13.  A  civil  marriage  is  null : 

1.  When  it  shall  not  have  been  celebrated  before  a  Judge  and  the 
competent  witnesses. 

2.  When  it  shall  have  been  contracted  by  persons  related  to  each 
other  in  the  first  degree  of  the  direct  line  of  legitimate  affinity. 

Art.  14.  Before  a  woman  shall  have  attained  eighteen  years  of  age, 
it  shall  not  be  licit  for  the  tutor  or  curator  who  may  have  administered 
or  is  administering  her  property,  to  marry  her  without  the  account  of 
the  administration  having  been  approved  by  the  Judge  with  the  legal 
formalities. 

A  similar  prohibition  shall  apply  to  the  marriage  between  the  descen- 
dants of  the  tutor  or  curator  and  the  award. 

Consequently,  Judges  shall  not  authorize  marriages  by  which  the 
provisions  of  this  article  are  violated. 

A  man  who  marries  according  to  Catholic  rites,  with  the  impediment 
mentioned  in  this  article,  shall  be  deprived  of  the  administration  of  the 
property  of  his  wife. 

621  of  the  Civil  Code. 

Art.  15.  The  nullities  referred  to  in  numbers  7,  8,  9,  11  and  12  of 
article  140  of  the  Code,  and  No.  2  of  article  13  of  this  law,  cannot  be 
cured,  and  the  Judge  must  declare,  even  ex  proprio  motu,  marriages 
celebrated  in  contravention  of  said  prohibitive  provisions  to  be  null. 


547 

Art.  i  6.  With  the  exception  of  the  cases  of  the  nullity  of  civil  mar- 
riages enumerated  in  article  140  of  the  Civil  Code  and  article  13  of  this 
law,  there  are  no  others  which  invalidate  a  marriage  contract.  Other 
faults  committed  in  the  celebration  thereof,  shall  subject  the  offenders 
to  the  penalties  established  in  the  Penal  Code. 

H.  i7. 

Art.  17.  The  nullity  of  Catholic  marriages  is  governed  by  the  laws 
of  the  Church,  and  the  ecclesiastical  authorities  have  jurisdiction  of  com- 
plaints of  this  character.  A  final  judgment  of  nullity  having  been 
rendered  by  the  ecclesiastic  tribunal,  it  shall  have  all  civil  and  political 
effects,  after  its  inscription  in  the  proper  book  of  registration  of  public 
instruments. 

12,18,19.     50,  51,  law  153  of  1887. 

Art.  18.  The  provision  of  the  preceding  article  as  to  causes  of  nullity, 
applies  also  to  divorce  suits. 

Art.  19.  The  provision  contained  in  article  1 2  shall  have  a  retroactive 
effect.  Catholic  marriages,  celebrated  at  any  time,  shall  have  all  civil 
and  political  effects  from  the  date  of  the  promulgation  of  the  present 
law. 

A  woman  who  at  the  time  of  the  promulgation  of  this  law,  shall  be 
married  according  to  Catholic  rites  but  not  civilly,  may  preserve  the 
administration  of  her  property,  and  may  celebrate  a  marriage  agree- 
ment with  the  husband,  within  a  term  of  one  year. 

i2.     21,  23,  50,  law  153  of  1887.     34  to  36,  law  30  of  1888. 


TITLE  IV. 

Of  Legitimate  Children  Conceived  in  Marriage. 

First  and  Last  Chapter. 

Special  Rules  for  a  Case  of  Divorce  and  Nullity  of  Marriage. 

Art.  20.  The  child  conceived  during  the  divorce  or  the  legal  separa- 
tion of  the  spouses,  shall  not  be  considered  a  child  of  the  husband,  unless 
it  be  proved  that  the  husband  by  positive  acts,  recognized  him  as  his 
own,  or  that  during  the  divorce  there  was  a  private  reconciliation  be- 
tween the  spouses. 


548 


TITLE  V. 

Of  Natural  Children. 


Art.  21.  An  illegitimate  child  who  has  not  been  recognized  volun- 
tarily with  the  legal  formalities,  may  demand  that  his  father  or  mother 
recognize  him  for  the  sole  purpose  of  demanding  support.* 


TITLE   VI. 

Of  Proof  of  the  Civil  Status. 

First  and  Last  Chapter. 
General  Provisions. 

Art.  22.  As  the  principal  proof  of  civil  status  shall  be  considered  and 
admitted,  with  respect  to  births,  or  marriages,  or  deaths  of  persons 
baptized,  or  married,  or  dying  in  the  Catholic  Church,  the  certificates 
which  with  the  legal  formalities  may  be  issued  by  the  respective  parish 
priests,  transcribing  the  records  or  entries  appearing  on  the  parochial 
books.  Such  proof  is  subject  to  rejection  and  may  be  supplied  in  the 
same  cases  and  under  the  same  terms  as  those  to  which  this  title  refers, 
to  which  it  is  assimilated. 

The  law  allows  to  the  said  parish  priests,  as  fees  for  the  certificates 
they  may  issue  in  accordance  with  this  article,  eighty  cents  for  each  cer- 
tificate, without  including  the  value  of  the  stamped  paper,  the  cost  of 
which  shall  be  borne  by  the  persons  interested. 

The  parochial  books  cannot  be  examined  by  order  of  the  civil  author- 
ity except  by  virtue  of  a  judicial  mandate,  for  the  purpose  of  verifying 
a  certain  point  the  subject  of  controversy,  in  the  same  cases  in  which  the 
laws  empower  the  Judges  to  decree  the  partial  inspection  of  the  books 
of  Notaries  Public. 

22,  79,  law  153  of  1887. 


TITLE  VII. 

Special  Rules  Relating  to  the  Curatorship  of  the  Deaf  and  Dumh. 

Art.  23.  Articles  546,  547,  548,  550,  551,  and  552  are  extended  to  the 
deaf  and  dumb. 

*This  article  is  expressly  repealed  by  art.  65  of  law  153  of  1887,  and  substituted 
by  art.  66  of  the  same  law. 


549 


TITLE  VIII. 

Juristic  Persons. 

Art.  24.  The  Churches  and  religious  associations  of  the  Catholic 
Religion,  are  juristic  persons. 

80,  law  153  of  1887. 

Art.  25.  The  Catholic  Church  and  the  special  ones  corresponding  to 
the  same  church,  as  juristic  persons,  shall  be  represented  in  each  diocese 
by  the  respective  legitimate  prelates,  or  by  the  persons  or  officials  which 
the  latter  may  designate. 

53  of  the  Constitution. 

Art.  26.  The  religious  associations  whose  existence  may  be  authorized 
by  the  respective  Ecclesiastic  Superior,  shall  be  represented  in  accord- 
ance with  their  constitutions  or  rules.  The  same  Ecclesiastic  Superior 
shall  determine  the  person  who,  in  accordance  with  the  by-laws,  shall 
represent  a  determinate  religious  association. 

Art.  27.  Juristic  persons  may  acquire  property  of  all  kinds,  under 
any  title  whatsoever,  subject  to  alienation. 

81,  law  153  of  1887. 


BOOK  THIRD. 

OF  SUCCESSION  MORTIS  CAUSA,  AND  DONATIONS 

INTER  VIVOS. 

TITL.E  I. 

Rules  Relative  to  Intestate  Succession. 

Art.  28.  The  legitimate  children  exclude  all  other  heirs  excepting 
legally  acknowledged  natural  children,  without  prejudice  to  the  conjugal 
portion  due  the  surviving  husband  or  wife. 

When  there  are  legitimate  and  natural  children,  the  net  estate  shall 
be  divided  in  half,  one-half  for  the  legitimate  children  exclusively,  and 
the  other  for  the  same  legitimate  children  and  for  the  natural  children, 
in  equal  parts  jointly  between  all  of  them. 

84  to  88,  law  153  of  1887. 


550 

TITLE  II. 

Of  Testamentary  Assignments. 

Chapter  i.  v  ] 

Of  Assignments  Under  a  Singular  Title. 

Art.  29.  If  the  selection  of  one  thing  from  a  number  shall  be  ex- 
pressly given  to  the  person  obligated  or  to  the  legatee,  the  former  or  the 
latter  respectively  may  offer  or  select  at  their  will. 

Art.  30.  If  different  shares  in  one  thing  be  bequeathed  to  a  number 
of  persons,  the  rules  prescribed  by  Chapter  5,  Title  IV,  of  Book  III  of  the 
Code  shall  be  observed  for  the  division  thereof. 

Chapter  2. 

Of  Revocable  Donations. 

Art.  31.  The  giving  of  revocable  donations  is  subject  to  the  rules  of 
article  1056. 


BOOK  FOURTH. 

TITLE  I. 

Purchase  and  Sale. 

First  and  Last  Chapter. 

Rescission  of  the  Sale  on  Account  of  Lesion  Beyond  Moiety. 

Art.  32.  A  rescissory  action  for  a  lesion  beyond  moiety  in  sales 
of  movable  property  shall  not  lie,  nor  shall  it  lie  in  sales  made  by  order 
of  the  court. 

See  Arts.  218,  20,  21,  and  22  of  the  Code  of  Commerce  in  force. 


55i 

TITJJE  II. 

Of  the  Cession  of  Rights. 

First  and  Last  Chapter. 

Of  Personal  Credits. 

Art.  33.  The  cession  of  a  credit,  under  any  title  made,  shall  have  no 
effect  between  the  assignor  and  the  assignee  except  by  virtue  of  the 
delivery  of  the  title.  But  if  the  credit  assigned  does  not  appear  in  a 
document,  the  cession  may  be  made  by  the  execution  of  a  document 
by  the  assignor  in  favor  of  the  assignee,  and  in  such  case  the  notice 
referred  to  in  article  1961,  must  be  given  with  the  exhibition  of  said 
document. 

TITLE  III. 

Of  Quasi  Contracts. 

Art.  34.  Obligations  contracted  without  an  agreement,  result  from 
the  law  or  from  a  voluntary  act  of  the  parties.  Those  resulting  from 
the  law,  are  expressed  therein. 

If  the  act  from  which  they  result  be  licit,  they  constitute  a  quasi 
contract. 

If  the  act  be  illicit,  and  committed  with  the  intention  of  doing  an 
injury,  they  constitute  a  crime  (delito). 

If  the  act  be  culpable,  but  committed  without  the  intention  of  doing 
an  injury,  it  constitutes  a  quasi  crime  or  offense. 

Chapter  i. 

Of  the  Quasi  Contract  of  Community. 

Art.  35.  The  provisions  of  article  2338  and  those  preceding  it  of  the 
Chapter  on  the  quasi  contract  of  community,  does  not  imply  the  neces- 
sity of  applying  to  the  judicial  authority  to  carry  into  effect  the  division 
of  the  thing  held  in  common,  or  the  sale  thereof,  for  the  purpose  of 
dividing  the  proceeds,  if  the  owners  in  common  agree  upon  either  unani- 
mously, and  that  their  agreement  be  not  interrupted  in  its  execution. 
But  if  there  should  be  minors  among  the  owners  in  common,  the  pro- 
visions of  article  485  shall  be  observed,  and  in  addition  the  division  made 
shall  be  submitted  for  approval  to  the  Judge,  as  to  the  part  related  with 
the  interests  of  the  minor.  The  Judge,  in  making  the  respective  decree, 
shall  take  into  consideration  the  rules  prescribed  by  article  2338,  and  may 
require  the  proofs  which  he  may  consider  necessary. 


552 

When  the  division  is  of  real  property,  a  record  thereof  shall  be  em- 
bodied in  a  public  instrument. 

488  of  the  Civil  Code.     37  to  90,  law  30  of  1888.     « 


TITLE  IV. 

Preference  of  Credits. 

Art.  36.  In  the  case  of  preference  of  credits,  public  instruments  shall 
be  preferred  before  private  instruments ;  and  when  the  latter  shall  have 
been  registered,  or  judicially  acknowledged  or  filed  in  a  protocol  or  figured 
in  court,  they  shall  be  given  preference  over  other  private  documents, 
dating  from  the  date  of  registration,  filing  in  the  protocol  or  acknow- 
ledgment. 

1758,  1 76 1  and  1762  of  the  Civil  Code. 


TITLE  V. 

Of  Notaries  Public. 

Art.  37.  The  Notaries  and  the  Registrars  of  public  instruments 
established  by  the  law  on  departmental  and  municipal  administration, 
are  subject  to  the  provisions  of  Title  IyXII  and  LXIII  respectively,  of 
Book  IV  of  the  Civil  Code. 

The  functions  of  a  judicial  character  which  by  said  titles  are  conferred 
on  the  Prefect  or  Corregidor,  shall  be  exercised  by  the  respective  Circuit 
Judge ;  those  not  partaking  of  this  character  which  are  conferred  on  the 
Prefect,  shall  be  exercised  by  the  new  prefects  or  authorities  taking  their 
place,  and  those  which  are  conferred  upon  the  Corregidores,  shall  be 
exercised  by  the  respective  Alcaldes. 

332>  333-     11,  12,  law  14  of  1887.     6,  law  34  of  1887.     6,  law  46 
of  1887.     96,  98,  law  153  of  1887. 

TITLE  VI. 
Ot  the  Registrar  of  Public  Instruments. 

First  and  Last  Chapter. 

Books  to  be  Kept  by  the  Registrar,  and  Titles,  A  cts  and  Documents  Subject 

to  Registration. 

Art.  38.  The  Registrar,  in  addition  to  the  books  referred  to  in  article 
2641  of  the  Civil  Code,  shall  keep  the  following. 


553 

A  duplicate  of  each  of  the  registers  Nos.  i  and  2  for  the  recording  of  the 
titles,  acts  and  documents  which  relate  to  the  interests  of  the  National 
Treasury,  or  of  that  of  a  Department,  or  of  that  of  a  Municipal  District. 

One  entitled  Register  of  Mortuary  causes,  for  the  inscription  of  all  the 
titles  or  acts  which,  in  accordance  with  the  laws  in  force,  must  be  recorded 
in  books  Nos.  1  and  2,  and  which  have  their  origin  in  succession  proceed- 
ings. 

Another  entitled  Register  of  Orders  of  attachment,  in  which  a  record 
shall  be  made  of  the  attachments  levied  on  real  property  situate  in  the 
corresponding  Registration  circuit. 

Another  entitled  Register  of  Civil  Suits,  for  the  inscription  of  ordinary 
civil  suits  affecting  the  ownership  of  immovable  property. 

Art.  39.  Any  Judge  who  shall  decree  the  attachment  of  real  property, 
even  though  the  order  shall  not  have  been  served,  shall  inform  the  re- 
spective Registrar  of  public  instruments,  by  a  communication  written 
on  ordinary  paper.  In  the  communication  the  order  of  attachment 
shall  be  copied  and  the  suit  in  which  it  was  decreed  shall  be  indicated, 
as  well  as  the  name  of  the  estate,  its  situation  and  boundaries,  in  order 
that  all  these  details  may  be  embodied  in  the  record. 

The  Registrar  shall  record  the  order  of  attachment  at  once  upon 
receiving  the  communication,  and  shall  then  return  it  to  the  Court  of 
origin,  with  a  memorandum  at  the  foot,  stating  the  folio  of  the  book 
upon  which  the  record  was  made. 

Art.  40.  When  the  discharge  of  an  estate  from  an  attachment  shall 
be  ordered,  the  cancellation  of  the  respective  record  of  the  attachment 
shall  also  be  ordered. 

Art.  41.  An  estate  shall  not  be  considered  as  attached  until  the  order 
of  attachment  shall  be  recorded. 

Art.  42.  Every  Judge  before  whom  an  ordinary  civil  suit  is  brought 
as  to  the  ownership  of  an  immovable,  shall  order  that  a  note  thereof  be 
made  in  the  Register  of  Civil  Suits,  as  soon  as  the  complaint  shall  have 
been  served  upon  the  defendant. 

The  Judge,  in  a  communication  written  on  ordinary  paper,  shall  in- 
form the  Registrar  of  the  following :  by  and  against  whom  the  suit  has 
been  brought,  the  name  of  the  real  property,  its  location  and  boun- 
daries. Upon  the  record  having  been  made  by  the  Registrar,  the  thing 
shall  be  considered  in  litigation  for  the  purposes  of  article  1521  of  the 
Civil  Code. 

Upon  the  termination  of  the  suit,  by  judgment  or  abandonment,  the 
Judge  shall  order  the  cancellation  of  the  record. 

Art.  43.  The  Registrar  of  public  instruments  shall  not  record  any 
instrument  whatsoever  of  alienation,  nor  inscribe  any  instrument  by 
which  a  mortgage  is  constituted,  when  there  shall  appear  recorded  in 
the  Register  of  orders  of  attachment  or  in  the  Register  of  oivil  suits,  either 
the  order  decreeing  the  attachment  of  the  estate  which  it  is  desired  to 
alienate  or  mortgage,  or  the  civil  suit  referred  to. 


554 

Art.  44.  The  Registrar  shall  receive  the  following  fees: 

For  the  recording  of  an  attachment  or  of  a  suit,  forty  cents  for  each. 

For  the  cancellation  of  one  of  said  records,  twenty  cents. 

For  the  certificate  of  one  of  said  records,  forty  cents. 

332,333- 

Final  Provision. 

Art.  45.  Articles  10,  24,  51,  60,  94,  114,  139,  146,  147,  318,  328,  329, 
332,  643,  644,  645,  647,  651,  1045,  1051,  1 182,  1 197,  1949,  2302  and 
2598  of  the  Code  are  repealed;  as  well  as  paragraphs  2  of  art.  52,  2  of 
article  105,  Nos.  4  and  10,  13  and  14  of  article  140,  the  paragraph 
following  subdivision  14,  of  the  said  article  140,  and  paragraph  1  of 
article  1 175,  all  of  the  Code  referred  to.* 

*  In  the  official  edition  article  1151  is  incorrectly  cited  as  being  repealed;  art. 
105 1  should  have  been  cited. 


555 

LAW  153  OF  1887. 

(August  24.) 

Supplementing  and  Amending  the  National  Codes,  Law  61  of  1886,  and 

Law  57  of  1887. 

The  National  Legislative  Council 

Decrees: 

Part  First. 

General  Rules  as  to  the  Validity  and  Application  of  the  Laws. 

Art.  1.  Whenever  any  inconsistency  is  observed  in  the  laws,  or  there 
is  any  conflict  between  the  prior  and  subsequent  law,  or  it  is  endeavored 
to  establish  the  legal  transit  of  an  old  law  to  a  new  law,  the  authorities 
of  the  Republic,  and  especially  the  judicial  authorities,  shall  observe 
the  rules  contained  in  the  following  articles. 

Art.  2.  The  subsequent  law  prevails  over  the  earlier  law.  In  the 
event  that  a  subsequent  law  should  be  contrary  to  a  previous  one,  and 
both  of  a  date  prior  to  the  act  the  subject  of  proceedings,  the  subse- 
quent law  shall  be  applied. 

Art.  3.  A  legal  provision  is  considered  as  not  in  force  by  virtue  of  the 
express  declaration  of  the  legislator,  or  its  incompatibility  with  special 
later  provisions,  or  by  reason  of  the  existence  of  a  new  law  fully  regu- 
lating the  matter  to  which  the  earlier  provisions  referred. 

Art.  4.  The  principles  of  natural  law  and  the  rules  of  jurisprudence 
shall  serve  to  illustrate  the  Constitution  in  doubtful  cases.  The  con- 
stitutional principles,  are  in  their  turn,  a  standard  for  the  interpretation 
of  the  laws. 

Art.  5.  Within  natural  equity  and  the  constitutional  principles, 
critics  and  hermeneutics  shall  serve  to  fix  the  intention  of  the  legislator 
and  elucidate  or  harmonize  obscure  or  inconsistent  legal  provisions. 

Art.  6.  An  express  provision  of  law  subsequent  to  the  Constitution  is 
considered  constitutional,  and  shall  be  applied  even  when  apparently 
contrary  to  the  Constitution.  But  if  it  were  not  an  express  provision, 
but  obscure  or  deficient,  it  shall  be  applied  in  accordance  with  the  mean- 
ing most  in  accordance  with  the  prescriptions  of  the  Constitution. 

Art.  7.  Title  III  of  the  Constitution  on  "civil  rights  and  social  guar- 
anties," has  also  legal  force,  and,  within  the  laws  subsequent  to  the  Con- 
stitution, the  priority  corresponding  to  it  as  an  integral  and  primordial 
part  of  the  Civil  Code. 


556 

Art.  8.  If  there  be  no  law  exactly  applicable  to  the  case  the  subject 
of  controversy,  the  laws  regulating  similar  cases  or  matters,  and  in  their 
absence,  the  constitutional  principles  and  the  general  rules  of  law,  shall 
be  applied. 

Art.  9.  The  Constitution  amends  and  repeals  the  pre-existing  legis- 
lation. Any  legal  provision  prior  to  the  Constitution  and  clearly  con- 
trary thereto  in  letter  or  spirit,  shall  be  rejected  as  not  in  force. 

Art.  10.  In  other  doubtful  cases,  the  Judges  shall  apply  the  most 
probable  legal  doctrine. 

Three  uniform  decisions  by  the  Supreme  Court,  as  a  Tribunal  of  Cas- 
sation, upon  the  same  point  of  law,  constitute  the  most  probable  legal 
doctrine. 

Art.  1 1 .  Decrees  of  a  legislative  character  issued  by  the  Government 
by  virtue  of  constitutional  authorization,  have  the  full  force  of  law. 

Art.  12.  The  orders  and  other  executive  acts  of  the  Government 
issued  in  the  exercise  of  power  regularly  vested  in  the  same,  have  obliga- 
tory force,  and  shall  be  applied  provided  they  are  not  contrary  to  the 
Constitution,  nor  to  the  laws  or  most  probable  legal  doctrine. 

Art.  13.  Custom,  if  general  and  in  accordance  with  Christian  morals, 
constitutes  law,  in  the  absence  of  positive  legislation. 

Art.  14.  A  law  repealed  shall  not  revive  by  the  mere  references  which 
may  be  made  thereto,  nor  by  the  abolition  of  the  law  which  repealed  it. 
A  repealed  provision  shall  recover  its  force  only  in  the  form  in  which  it 
may  be  reproduced  in  a  new  law. 

Art.  15.  All  Spanish  laws  are  abolished.* 

Art.  16.  Canonical  legislation  is  independent  of  civil  legislation,  and 
does  not  form  part  of  the  latter;  but  it  shall  be  formally  respected  by 
the  authorities  of  the  Republic. 

Art.  17.  Mere  expectations  do  not  constitute  a  right  against  the  new 
law  which  annuls  or  restricts  them. 

Art.  18.  The  laws  which  for  reasons  of  morality,  salubrity  or  public 
utility  restrict  rights  protected  by  a  previous  law,  have  an  immediate 
general  effect. 

If  the  law  should  provide  for  expropriations,  its  execution  requires 
previous  compensation,  which  shall  be  made  in  accordance  with  the 
pre-existing  laws. 

If  the  law  should  establish  new  conditions  for  the  exercise  of  an 
industry,  the  persons  interested  shall  be  granted  the  term  which  the  law 
fixes,  and  if  not  fixed  by  the  law,  the  term  of  six  months. 

Art.  19.  Laws  which  establish  for  the  administration  of  a  civil  status 
conditions  different  from  those  required  by  a  previous  law,  have  obliga- 
tory force  from  the  date  upon  which  they  go  into  effect. 

*See  arts.  1  and  2  of  law  1,  Part  2,  Treatise  2,  of  the  Granadian  Recopilation. 

We  do  not  believe  that  a  declaration  of  the  repeal  of  the  Spanish  laws  prevents 
their  application  in  controversies  and  suits  involving  contracts  celebrated  or  acts  ex- 
ecuted while  said  laws  were  in  force.     See  art.  2683  of  the  Civil  Code.     {Angarita.) 


557 

Art.  20.  The  civil  status  of  persons  acquired  in  accordance  with  the 
law  in  force  at  the  date  of  its  constitution,  shall  subsist  even  though  said 
law  should  be  abolished ;  but  the  rights  and  obligations  annexed  to  the 
said  status,  the  consequent  reciprocal  relations  of  authority  or  depen- 
dence between  spouses,  between  parents  and  children,  between  guar- 
dians and  wards,  and  the  rights  of  usufruct  and  administration  of 
property  of  others,  shall  be  governed  by  the  new  law,  without  prejudice 
to  the  acts  and  contracts  validly  celebrated  under  the  authority  of  a 
prior  law  having  their  proper  effects. 

Art.  2  i  .  A  marriage  may,  by  a  subsequent  law,  be  declared  as  cele- 
brated at  some  passed  period,  and  valid  as  to  its  civil  effects,  from  the 
date  of  an  act  sanctioned  by  religious  custom  and  the  general  custom  of 
the  country;  in  so  far  as  this  retroactive  benefit  does  not  injure  rights 
acquired  under  the  authority  of  prior  legislation. 

Art.  22.  The  proofs  of  a  civil  status  legitimated  from  a  passed  period, 
by  the  subsequent  law,  shall  be  subordinated  to  the  same  principle, 
which  is  recognized  as  determining  the  legitimacy  of  that  status. 

22  of  law  57  of  1887. 

Art.  23.  The  capacity  of  the  woman  to  administer  her  property,  shall 
be  governed  immediately  by  the  subsequent  law.  But  if  the  latter 
shall  restrict  said  capacity,  the  restriction  shall  not  be  enforced  until  the 
expiration  of  one  year,  unless  the  law  itself  should  provide  otherwise. 

Art.  24.  Children  declared  legitimate  under  the  authority  of  one  law, 
shall  not  lose  their  character  by  virtue  of  a  subsequent  law. 

Art.  25.  The  rights  of  illegitimate  and  natural  children  are  subject 
to  the  subsequent  law  in  so  far  as  the  application  thereof  is  not  prejudi- 
cial to  the  legitimate  succession. 

Art.  26.  He  who,  under  the  authority  of  one  law  shall  have  the 
administration  of  the  property  of  another,  or  he  who  validly  shall  dis- 
charge the  duties  of  guardian,  shall  preserve  the  title  he  acquired  earlier, 
even  though  a  new  law  should  require,  for  its  acquisition,  new  condi- 
tions ;  but  the  exercise  of  functions,  compensation  due  the  guardian, 
incapacities  and  excuses  arising,  shall  be  governed  by  the  new  law. 

Art.  27.  The  existence  and  the  rights  of  juristic  persons  are  subject 
to  the  rules  established  in  articles  19  and  20,  respecting  the  civil  status 
of  persons. 

Art.  28.  Any  real  right  acquired  under  a  law  and  in  accordance  there- 
with, subsists  under  the  authority  of  another;  but  with  regard  to  its 
exercise  and  charges,  and  its  extinction,  the  provisions  of  the  new  law 
shall  prevail. 

Art.  29.  Possession,  constituted  under  a  former  law,  is  not  retained, 
lost  or  recovered  under  the  authority  of  a  later  law,  excepting  by  the 
means  or  with  the  requisites  prescribed  in  the  new  law. 


558 

Art.  30.  Rights  deferred  under  a  condition  that,  in  accordance  with 
the  provisions  of  a  later  law,  must  be  considered  as  lapsed  if  not  ful- 
filled within  a  certain  time,  shall  subsist  under  the  authority  of  the  new 
law  and  for  the  time  which  may  have  been  fixed  by  the  earlier  law,  un- 
less such  time,  in  that  part  thereof  running  after  the  enactment  of  the 
new  law,  shall  exceed  the  full  period  allowed  by  the  latter,  as  in  such 
case,  if  the  condition  should  not  be  performed  within  the  period  thus 
counted,  it  shall  be  considered  as  lapsed. 

Art.  31.  Whenever  a  new  law  shall  prohibit  the  constitution  of 
various  successive  usufructs,  and  the  first  should  expire  before  said  law 
goes  into  effect,  and  one  of  the  subsequent  usufructuaries  should  have 
begun  to  enjoy  the  thing,  the  latter  shall  continue  to  enjoy  it  under  the 
new  law  for  such  time  as  he  may  be  authorized  to  by  his  title;  but  the 
right  of  the  subsequent  usufructuaries,  if  there  be  any,  shall  lapse. 

The  same  rule  shall  apply  to  the  successive  rights  of  use  and  habita- 
tion and  to  fideicommissa.  '  * 

Art.  32.  Natural  and  voluntary  servitudes  constituted  in  a  valid 
manner  under  the  authority  of  an  old  law,  shall  be  'subject  in  their 
exercise  and  preservation  to  the  rules  established  by  the  new  laws. 

Art.  33.  Any  person  shall  have  the  right  to  take  advantage  of  the 
natural  servitudes  the  imposition  of  which  is  authorized  by  a  new  law ; 
but  in  order  to  do  so  he  shall  be  obliged  to  compensate  the  owner  of  the 
servient  tenement  for  the  damages  which  may  be  caused  him  by  the  con- 
stitution of  the  servitude,  such  owner  renouncing  on  his  part  the  profit 
which  may  result  in  his  favor  by  the  reciprocity  of  the  servitude;  but 
he  may  always  recover  his  right  to  such  profits  upon  paying  the  in- 
demnity mentioned. 

Art.  34.  The  exterior  formalities  of  testaments  shall  be  governed  by 
the  law  in  force  at  the  time  of  their  execution ;  but  the  dispositions  con- 
tained therein  shall  be  subordinate  to  the  law  in  force  at  the  date  of 
the  death  of  the  testator. 

Consequently,  the  laws  in  force  at  the  time  of  the  death  of  the  testa- 
tor on  the  incapacity  or  unworthiness  of  the  heirs  or  assigns,  the  legi- 
times, betterments,  conjugal  portion  and  disinherison,  shall  prevail 
over  those  prior  thereto. 

Art.  35.  If  the  testament  should  contain  dispositions  which  accord- 
ing to  the  law  under  which  it  was  executed  should  not  be  carried  out, 
they  shall,  nevertheless,  be  carried  out,  provided  that  they  are  not  in 
conflict  with  the  law  in  force  at  the  date  of  the  death  of  the  testator. 

Art.  36.  In  forced  or  intestate  successions,  the  right  of  representation 
of  those  called  thereto  shall  be  governed  by  the  law  under  which  said 
succession  may  have  been  opened. 

But  if  the  succession  be  opened  under  the  authority  of  one  law,  and  in 
a  testament  executed  under  the  authority  of  another  law  an  inde- 
terminate person  should  have  been  called  who,  in  the  absence  of  the 


559 

direct  assign  is  to  succeed  in  whole  or  in  part  to  the  inheritance  by  his 
own  right  or  by  representation,  this  person  shall  be  determined  by  the 
'  rules  to  which  said  right  was  subject  according  to  the  law  under  which 
the  testament  was  executed. 

Art.  37.  In  the  adjudication  and  partition  of  an  inheritance  or  legacy 
the  rules  governing  at  the  time  of  its  delation  shall  be  observed. 

Art.  38.  In  every  contract  the  laws  in  force  at  the  time  it  was  cele- 
brated shall  be  understood  as  incorporated  therein. 

Herefrom  are  excepted : 

1 .  The  laws  concerning  the  mode  of  enforcing  by  suit  the  rights  result- 
ing from  the  contract ;  and 

2.  Those  which  affix  penalties  for  a  violation  of  the  stipulations; 
which  violation  shall  be  punished  in  accordance  with  the  law  under 
which  it  may  have  been  committed. 

Art.  39.  The  acts  or  contracts  validly  celebrated  under  the  authority 
of  one  law  may  be  proved  under  the  authority  of  another,  by  the  means 
which  the  former  established  for  their  justification ;  but  the  form  in  which 
such  proof  is  to  be  adduced  shall  be  subordinated  to  the  law  in  force 
at  the  time  of  its  production. 

Art.  40.  The  laws  regarding  the  hearing  and  procedure  of  actions  pre- 
vail over  the  prior  laws  from  the  moment  they  go  into  effect.  But 
terms  which  may  have  begun  to  run,  and  proceedings  and  measures 
already  initiated,  shall  be  governed  by  the  law  in  force  at  the  time 
of  their  initiation. 

Art.  4  i  .  A  prescription  initiated  under  the  protection  of  one  law,  and 
which  shall  not  have  been  completed  yet  at  the  time  of  the  promulga- 
tion of  a  new  law  modifying  the  same,  may  be  governed  by  the  first  or 
the  second,  at  the  option  of  the  prescriber;  but  if  the  later  law  be 
selected,  the  prescription  shall  not  begin  to  be  counted  except  from  the 
date  said  later  law  may  have  gone  into  effect. 

Art.  42.  What  a  later  law  may  declare  absolutely  imprescriptible, 
cannot  be  acquired  by  time  under  the  authority  of  the  same,  even  though 
the  person  seeking  the  prescription  shall  have  begun  to  possess  it  under 
a  prior  law  which  authorized  the  prescription. 

Art.  43.  The  pre-existing  law  takes  precedence  over  the  ex  post  facto 
law  in  penal  matters.  No  one  can  be  punished  or  tried  excepting  under 
a  law  promulgated  before  the  act  which  gave  rise  to  the  proceedings. 
This  rule  applies  only  to  laws  which  define  and  punish  crimes,  but  not 
to  those  which  establish  the  Tribunals  and  prescribe  the  procedure, 
which  shall  be  applied  in  accordance  with  article  40. 

Art.  44.  In  penal  matters,  the  favorable  or  permissive  law  is  pre- 
ferred in  proceedings  to  the  odious  or  restrictive  law,  even  though  the 
former  be  subsequent  to  the  time  of  the  commission  of  the  crime. 

This  rule  favors  convicted  criminals  who  may  be  serving  their 
sentences. 


560 

Art.  45.  The  preceding  provision  has  the  following  applications: 

The  new  law  which  explicitly  or  implicitly  takes  away  the  criminal 
character  from  an  act  which  formerly  partook  of  the  nature  of  a 
crime,  entails  pardon  and  rehabilitation. 

If  the  new  law  reduces  in  a  fixed  manner  a  penalty  which  was  formerly 
also  fixed,  the  corresponding  reduction  of  penalty  shall  be  declared. 

If  the  new  law  reduces  the  maximum  of  the  penalty  and  increases  the 
minimum,  that  of  the  two  laws  which  the  person  interes- ed  may  invoke, 
shall  be  applied. 

If  the  new  law  reduces  the  corporeal  penalty  and  increases  the  pecu- 
niary one,  it  shall  prevail  over  the  old  law. 

Doubtful  cases  shall  be  decided  by  a  benignant  interpretation. 

Art.  46.  An  order  which,  in  accordance  with  the  new  law,  discon- 
tinues or  reduces  the  penalty  of  those  serving  a  sentence,  shall  be  admin- 
istrative and  not  judicial. 

Art.  47.  The  power  which  sentenced  criminals  may  have  acquired 
to  obtain  by  right  and  not  as  a  grace,  a  reduction  of  penalty,  in  accord- 
ance with  the  law  in  force  at  the  time  they  were  sentenced,  shall  subsist 
under  a  new  law  as  to  the  moral  conditions  determining  the  right  and 
the  part  of  the  sentence  to  which  the  right  refers;  but  they  shall  be 
governed  by  the  new  law  with  regard  to  the  authorities  who  must  grant 
the  reduction  and  the  formalities  to  be  observed  in  demanding  it. 

Art.  48.  Judges  or  Magistrates  who  shall  refuse  to  judge  under  the 
pretext  of  silence,  obscurity  or  insufficiency  of  the  law,  shall  incur 
liability  by  reason  of  denial  of  justice. 

Art.  49.  Article  5  of  law  57  of  1887,  *s  amended  in  the  terms  of  the 
preceding  provisions,  and  article  13  of  the  Civil  Code  is  repealed. 

Second  Part. 

Civil  Legislation. 

I.  Of  Persons. 

[See  Civil  Code,  Book  I,  Title  4,  11,  14,  16,  17,  20  and  36.] 

§  1.  Civil  Status.     Marriage. 

Art.  50.  Marriages  celebrated  in  the  Republic,  at  any  time,  in  accord- 
ance with  Catholic  rites,  shall  be  considered  legal,  and  shall  have,  from 
the  time  of  the  administration  of  the  sacrament,  the  civil  and  political 
effects  which  by  law  marriage  entails,  in  so  far  as  this  benefit  does  not 
affect  the  rights  acquired  by  acts  or  contracts  realized  by  both  spouses, 
or  by  one  of  them,  with  third  persons,  in  accordance  with  the  civil  laws 
which  were  in  force  in  the  respective  State  or  territory  before  April  15, 
1887. 


56i 

Article  19  of  law  57  of  1887,  is  thus  explained,  in  accordance  with 
article  21  of  this  law. 

Art.  51.  The  ecclesiastical  tribunals  shall  have  exclusive  cognizance, 
in  accordance  with  canonical  laws,  of  suits  for  the  nullity  and  divorce  of 
Catholic  marriages  celebrated  at  any  time  and  the  final  decision  rendered 
by  the  same  shall  produce  all  civil  effects  in  accordance  with  the  provi- 
sions of  article  17  and  18  of  law  57. 

§  2.  Legitimation  of  Children. 

Art.  52.  The  subsequent  marriage  legitimates  ipso  jure  the  children 
conceived  before  and  born  during  the  same,  excepting  in  the  following 
cases : 

1 .  If  the  child  was  conceived  in  adultery  :  the  fact  of  one  of  the  parents 
ignoring  that  the  other  was  married,  at  the  time  of  the  conception,  or  the 
fact  of  the  other  having  believed  in  good  faith  that  his  or  her  marriage 
no  longer  subsisted,  are  circumstances  which  do  not  invalidate  this 
exception. 

2.  If  the  subsequent  marriage  is  presumed  or  putative. 

3.  If  said  marriage  lacks  the  legal  conditions  necessary  to  produce 
civil  effects. 

Article  237  of  the  Civil  Code  is  amended  in  these  terms. 

§  3.  Paternal  Power. 

Art.  53.  Paternal  power  is  the  aggregation  of  rights  which  the  law 
recognizes  in  the  legitimate  father  over  his  children  who  are  not  emanci- 
pated. 

Upon  the  death  of  the  father,  these  rights  shall  be  exercised  by  the 
legitimate  mother  while  she  observes  good  habits  and  does  not  re-marry. 

Children  of  any  age  not  emancipated  shall  be  children  of  the  family, 
and  the  father  or  mother  with  regard  to  them,  the  father  or  mother  of 
the  family. 

§  4.  Natural  Children. 

Art.  54.  Children  born  out  of  wedlock,  not  of  punishable  intercourse, 
(danado  ayuntamiento)  may  be  acknowledged  by  their  parents  or  by  one 
of  them,  and  shall  have  the  legal  quality  of  natural  children  with  re- 
spect to  the  father  or  the  mother  who  may  have  acknowledged   them 

7  law  57  of  1887. 

Art.  55.  The  acknowledgment  is  a  free  and  voluntary  act  of  the 
father  or  mother  who  acknowledges. 

Art.  56.  The  acknowledgment  must  be  made  by  a  public  instrument 
inter  vivos,  or  by  a  testamentary  act. 


562 

If  one  of  the  parents  only  makes  the  acknowledgment,  he  or  she  shall 
not  be  obliged  to  state  in  whom  or  by  whom  the  natural  child  was  had. 

1 758  of  Civil  Code.     7  of  law  57  of  1887. 

Art.  57.  The  acknowledgment  of  the  natural  child  must  be  notified 
and  accepted  or  repudiated  in  the  same  manner  as  legitimation  would 
be,  according  to  Title  1 1  of  the  Civil  Code. 

Art.  58.  The  acknowledgment  may  be  impugned  by  any  person  who 
proves  that  he  has  an  actual  interest  therein. 

One  of  the  following  causes  must  be  established  for  the  purpose  of 
impugning  the  acknowledgment. 

1st  and  2d.  The  first  and  second  of  those  designated  as  necessary  for 
the  purpose  of  impugning  the  legitimation  in  article  248  of  the  Civil 
Code. 

3d.  The  fact  of  having  been  conceived,  according  to  article  92.  of  said 
Code,  when  the  father  or  the  mother  was  married. 

4th.  By  reason  of  having  been  conceived  in  punishable  intercourse, 
qualified  as  such  by  a  final  judgment. 

5.  By  reason  of  the  acknowledgment  not  having  been  executed  in  the 
form  prescribed  in  article  56  of  this  law. 

6  and  7  of  law  57  of  1887. 

§5.  Rights  and  Obligations  Between  Parents  and  Natural 

Children. 

Art.  59.  The  natural  children  do  not  have,  with  respect  to  the  father 
or  mother  who  acknowledged  them  with  the  legal  formalities,  other 
rights  than  those  expressly  granted  them  by  the  laws. 

With  respect  to  the  father  or  the  mother  who  has  not  acknowledged 
them  in  this  manner,  they  shall  simply  be  considered  as  illegitimate. 

Art.  60.  The  obligations  of  legitimate  children  to  their  parents, 
expressed  in  articles  250  and  251  of  the  Code,  extend  to  the  natural  child 
with  respect  to  the  father  or  the  mother  who  may  have  acknowledged 
him  with  the  legal  formalities,  and  if  both  have  acknowledged  him  in 
this  manner,  he  shall  be  specially  subject  to  the  father. 

Art.  61.  The  father  or  mother  who  shall  have  acknowledged  the 
natural  children,  is  obliged  to  personally  care  for  them,  in  the  same  terms 
as  the  legitimate  father  or  mother  would  be  required  to,  according 
to  article  253  of  the  Code. 

But  a  married  person  cannot  have  a  natural  child  in  his  or  her  house 
without  the  consent  of  her  husband  or  his  wife. 

Art.  62.  The  expense  of  bringing  up  and  educating  the  natural  child 
shall  be  borne  by  the  father  or  mother  who  shall  have  acknowledged 
him. 


563 

Such  education  shall  include  at  least  primary  instruction  and  appren- 
ticeship to  a  profession  or  trade. 

If  both  parents  shall  have  acknowledged  him,  the  Judge  shall  in  a  neces- 
sary case  fix  the  amount  which  each  of  them,  according  to  their  powers 
and  circumstances,  is  to  contribute  for  the  bringing  up  and  education  of 
the  child. 

The  second  paragraph  of  article  257  of  the  Code  is  applicable  to  the 
property  of  natural  children. 

The  provisions  of  articles  258,  259  and  261  to  268,  inclusive,  of  the 
Code,  are  likewise  applicable  to  natural  parents  or  children. 

Art.  63.  The  children  under  five  years  of  age,  without  distinction  as 
to  sex,  and  the  daughters  of  any  age,  shall  be  under  the  personal  care 
of  the  mother.  Nevertheless,  the  care  of  the  children  of  any  age  or  sex 
shall  not  be  entrusted  to  her  when  by  reason  of  the  depravity  of  the 
mother  there  is  reason  to  fear  that  they  will  be  perverted. 

In  such  case,  or  if  she  be  qualified  for  any  other  cause,  the  personal  care 
of  all  the  children  may  be  entrusted  to  the  father  who  shall  have  ac- 
knowledged them  in  legal  form. 

Art.  64.  The  personal  care  of  male  children  over  five  years  of  age, 
whom  the  father  may  have  acknowledged  in  accordance  with  the  law, 
shall  be  under  his  charge,  unless  by  reason  of  his  depraved  character  or 
other  causes  of  disqualification,  the  Judge  shall  prefer  to  entrust  them  to 
the  mother. 

Art.  65.  Titles  16  and  17  of  Book  First  of  the  Civil  Code,  and  article 
21  of  law  57  of  1887,  are  repealed. 

§  6.  Illegitimate  Children  Not  Formally  Acknowledged. 

Art.  66.  An  illegitimate  child  not  voluntarily  acknowledged  with  the 
legal  formalities,  cannot  demand  that  his  father  or  mother  acknowledge 
him,  except  for  the  sole  purpose  of  demanding  support. 

21  of  law  57  of  1887. 

Art.  67.  Any  person  who  shall  prove  that  he  has  had  charge  of  the 
bringing  up  of  a  child  who  has  not  attained  the  age  of  puberty  may 
bring  the  suit  in  his  name.  t 

Persons  under  twenty-one  years  of  age,  not  qualified  as  to  age,  shall 
be  assisted  in  this  suit  by  their  tutor  or  general  curator,  or  by  a  special 
curator. 

Art.  68.  The  illegitimate  child  shall  have  the  right  to  have  his  alleged 
father  cited  to  appear  personally  before  the  Judge  to  declare  under  oath 
if  he  believes  he  is  such  father,  the  purpose  of  the  citation  being  stated  in 
the  writ. 

Art.  69.  If  the  defendant  should  not  appear  when  able  to  do  so,  and  a 
second  citation  shall  have  issued,  the  object  being  stated  therein,  the 
paternity  shall  be  considered  as  acknowledged. 


564 

Art.  70.  An  investigation  into  or  a  presumption  as  to  the  paternity  is 
not  admissible  by  other  means  than  those  expressed  in  the  preceding 
articles. 

Art.  71.  If  the  defendant  shall  confess  that  he  is  the  father,  or, 
according  to  the  provisions  of  article  70  of  this  law,  the  paternity  should 
be  considered  as  acknowledged,  he  shall  be  obliged  to  furnish  the  child 
support,  but  only  in  so  far  as  necessary  for  his  bare  subsistence. 

This  restriction  shall  not  apply  in  the  case  of  article  73  of  this  law. 

Art.  72.  No  illegitimate  male  who  shall  have  attained  the  age  of 
twenty-one  years,  and  shall  not  be  physically  incapacitated  from  engag- 
ing in  a  work  from  which  he  can  gain  a  subsistence  shall  be  permitted 
to  demand  acknowledgment  by  or  support  from  his  father  or  mother ; 
but  the  action  shall  revive  if  the  child  should  subsequently  become 
unable  to  gain  a  subsistence  from  his  work. 

Art.  73.  If  by  any  trustworthy  means  abduction  should  be  established 
and  the  conception  might  have  been  possible  while  the  person  abducted 
was  in  the  power  of  the  abductor,  the  latter  shall  be  adjudged  to  furnish 
the  child,  not  only  the  support  necessary  for  mere  subsistence,  but  in  so 
far  as  possible,  that  in  accordance  with  the  social  rank  of  the  mother. 

Abduction  is  the  seduction  of  a  minor  by  causing  her  to  leave  the  house 
of  the  person  under  whose  care  she  may  be,  even  though  force  be  not 
employed. 

The  action  granted  by  this  article  expires  in  ten  years  from  the  date 
it  could  have  been  broguht. 

Art.  74.  An  illegitimate  child  shall  have  the  right  to  receive  assistance 
from  his  mother  with  the  support  necessary  if  he  cannot  obtain  it  from 
the  father. 

This  action  cannot  be  brought  against  any  married  woman. 

Art.  75.  If  the  defendant  should  deny  that  the  child  is  hers,  the  plain- 
tiff shall  be  permitted  to  prove  it  by  means  of  trustworthy  testimony 
establishing  the  fact  of  the  birth  and  the  identity  of  the  child. 

The  record  or  certificate  of  birth  shall  not  serve  as  proof  for  the  pur- 
pose of  establishing  the  maternity. 

Art.  76.  The  support  furnished  by  the  father  or  the  mother  shall  run 
from  the  date  of  the  first  suit ;  and  support  for  the  time  prior  thereto  can- 
not be  demanded,  unless  the  suit  be  brought  against  the  father  within 
one  year  next  after  the  birth. 

In  such  case  the  support  corresponding  to  this  entire  year  shall  be 
granted,  including  the  expense  of  the  birth,  fixed,  if  necessary,  by  the 
Judge. 

Art.  77.  An  illegitimate  father  suing  for  support  in  such  capacity,  shall 
not  be  heard. 

But  a  mother  who  demands  support  of  the  illegitimate  child,  shall  be 
heard,  unless  the  latter  shall  have  been  abandoned  by  her  in  infancy. 

Art.  78.  The  judicial  proceedings  to  which  the  suit  brought  by  the 


565 

illegitimate  child  may  give  rise,  shall  be  oral,  and,  if  the  Judge  should 
deem  it  advisable,  secret. 

In  the  case  of  article  73  of  this  law,  the  proceeding  shall  be  cond-ucted 
in  writing  according  to  the  ordinary  procedure*. 

§  7.  Proofs  of  the  Civil  Status. 

Art.  79.  With  regard  to  Catholic  marriages  celebrated  at  any  time 
and  which  are  to  produce  civil  effects  in  accordance  with  the  provisions 
of  this  law  and  law  57  of  1887,  the  principal  proofs  shall  be  considered 
those  of  ecclesiastical  origin,  in  accordance  with  the  provisions  of 
article  22  of  said  law  57. 

22  of  this  law. 

§  8.  Juristic  Persons. 

Art.  80.  The  Nation,  the  Departments,  the  Municipalities,  Charitable 
Institutions,  and  those  of  public  instruction,  and  the  corporations 
created  or  recognized  by  the  law,  are  juristic  persons. 

24  et  seq.,  of  law  57  of  1887. 

Art.  81.  Foreign  governments  have  no  juridical  representation  in 
Colombia  for  the  acquisition  of  real  property. 

II.  Of  Property. 

§1.  Public  Property. 

§  2.  Literary  Property. 

[Civil  Code,  Book  II,  Title  III.] 

Art.  82.  The  unclaimed  or  vacant  property  situated  within  the  limits 
of  muncipalities  belong  to  the  same,  excepting  the  provisions  of  article 
129  of  this  law. 

Art.  83.  Law  32  of  1886,  on  literary  and  artistic  property  is  incor- 
porated in  the  Civil  Code. 

III.  Succession  Mortis  Causa.     Intestate  Succession. 

Art.  84.  By  a  testament  executed  during  the  last  illness  no  inheri- 
tance or  legacy  whatsoever  can  be  received,  not  even  as  fiduciary  exe- 
cutor, by  the  ecclesiastic  who  may  have  confessed  the  testator  during 
said  illness,  or  customarily  during  the  two  years  preceding  the  testa- 

*Sorae  of  the  provisions  of  this  paragraph  are  included  in  Title  XVI  of  Book 
First  of  the  Civil  Code,  which  Title  was  repealed  by  article  65  of  this  law 


566 

ment ;  nor  by  the  Order,  Convent  or  Brotherhood  of  which  the  ecclesiastic 
may  be  a  member,  nor  his  relatives  by  consanguinity  or  affinity  within 
the  third  degree. 

Such  incapacity  does  not  include  the  parochial  church  of  the  testator, 
nor  such  portion  of  the  property  which  said  ecclesiastic  or  his  relatives 
would  have  received  in  an  intestate  succession. 

Articles  1022  of  the  Civil  Code  and  article  27  of  law  57  of  1887  are  thus 
amended. 

Art.  85.  The  legitimate  descendants  of  the  deceased,  his  legitimate 
ascendants,  his  legitimate  collaterals,  his  natural  children,  his  natural 
parents,  his  natural  brothers  and  sisters,  the  surviving  spouse,  and  in 
the  last  place,  the  municipality  of  the  residence  of  the  deceased,  are 
called  to  the  intestate  succession. 

Article  1040  of  the  Civil  Code  is  thus  amended  and  article  1051  is 
repealed. 

Art.  86.  The  legitimate  children  exclude  all  the  other  heirs,  without 
prejudice  to  the  conjugal  portion  due  the  surviving  husband  or  wife. 

Art.  87.  In  the  absence  of  legitimate  descendants,  ascendants  and 
brothers  and  sisters,  of  a  surviving  spouse  and  of  natural  children,  the 
other  legitimate  collaterals  of  the  deceased  shall  succeed  him,  accord- 
ing to  the  following  rules : 

1.  The  collateral  or  collaterals  of  the  nearest  degree  shall  always 
exclude  the  others. 

2.  The  rights  of  succession  of  the  collaterals  do  not  extend  beyond 
the  tenth  degree. 

3.  The  collaterals  of  simple  conjunction,  that  is  to  say,  those  who  are 
relatives  of  the  deceased  on  the  father's  side  or  on  the  mother's  side, 
enjoy  the  same  rights  as  the  collaterals  of  double  conjunction,  that  is, 
those  who  are  relatives  of  the  deceased  on  the  side  of  the  father  and  on  the 
side  of  the  mother. 

Art.  88.  Articles  1045  and  1049  of  the  Civil  Code,  and  article  28  of 
law  57  of  1887,  are  repealed. 

IV.  Obligations. 

[Civil  Code,  Book  IV,  Titles  14,  20,  21,  32,  42,  43.] 

§1.  Promise  to  Celebrate  Contracts. 

Art.  89.  The  promise  to  celebrate  a  contract  does  not  produce  any 
obligation  whatsoever,  unless  the  following  circumstances  are  present : 

1 .  That  the  promise  is  in  writing. 

2.  That  the  contract  to  which  the  promise  refers  be  not  of  those  which 
the  law  declares  inefficient  on  account  of  the  absence  of  the  requisites 
established  by  article  1 5 1 1  of  the  Civil  Code. 


567 

3.  That  the  promise  contain  a  term  or  condition  fixing  the  time  when 
the  contract  is  to  be  celebrated. 

4.  That  the  contract  be  determined  in  such  manner  that  in  order  to 
consummate  it  the  only  thing  lacking  is  the  tradition  of  the  thing  or  the 
legal  formalities. 

The  terms  of  a  contract  promised  shall  be  applied  only  to  the  matter 
the  subject  of  the  contract. 

Article  161 1  of  the  Civil  Code  is  repealed. 

§  2.  Absolute  Nullities. 

Art.  90.  The  absolute  nullity  may  be  pleaded  by  any  one  having  an 
interest  therein,  excepting  by  him  who  shall  have  executed  the  act  or 
celebrated  the  contract  knowing  or  being  obliged  to  know  of  the  vice 
which  invalidated  it ;  his  declaration  may  likewise  be  demanded  by  the 
representative  of  the  Department  of  Public  prosecution,  (Ministerio 
Publico),  in  the  interests  of  morals  or  of  the  law.  When  it  is  due  to 
an  illicit  object  or  consideration  or  the  absolute  incapacity  to  execute 
an  act  or  celebrate  a  contract,  it  cannot  be  cured  by  the  ratification  of 
the  parties,  nor  by  a  lapse  of  time  of  less  than  thirty  years.  In  other  cases 
it  may  be  cured  by  ratification  made  with  the  legal  formalities  and  by 
ordinary  prescription. 

Article  1742  of  the  Civil  Code  is  thus  amended. 

§  3.  Proofs  of  Obligations. 

Art.  9 1 .  The  acts  or  contracts  which  contain  the  delivery  or  promise 
of  a  thing  worth  more  than  five  hundred  pesos,  must  be  in  writing. 

The  evidence  of  witnesses  shall  not  be  admissible  in  so  far  as  it  adds 
to  or  alters  in  any  manner  what  is  expressed  in  the  act  or  contract, 
nor  upon  what  is  alleged  to  have  been  said  before,  or  at  the  time  or  after 
its  execution,  even  when  such  additions  or  modifications  involve  a  thing 
whose  value  is  under  five  hundred  pesos. 

For  the  computation  of  said  sum  of  five  hundred  pesos,  there  shall 
not  be  considered  the  value  of  the  fruits,  interest  or  other  accessories  of 
the  species  or  amount  due. 

Art.  92.  He  who  shall  sue  for  a  thing  of  more  than  five  hundred  pesos 
value,  shall  not  be  permitted  to  introduce  the  evidence  of  witnesses, 
even  though  he  limit  his  suit  to  said  amount. 

Nor  is  the  evidence  of  witnesses  admissible  in  suits  involving  less  than 
five  hundred  pesos,  when  it  is  declared  that  what  is  sued  for  is  a  part  or 
the  balance  of  a  credit  which  should  have  been  reduced  to  writing  and 
was  not. 

Art.  93.  From  the  provisions  of  the  preceding  articles  are  excepted 
the  cases  in  which  there  may  be  a  principle  of  proof  in  writing,  that  is  to 
say,  a  written  act  of  the  defendant  or  of  his  representative,  which  makes 
the  litigious  act  probable. 


568 

Thus,  a  note  for  more  than  five  hundred  pesos  for  the  purchase  of  a 
thing  which  is  to  be  delivered  to  the  debtor,  shall  not  be  full  proof  of  the 
debt  because  it  does  not  certify  the  delivery;  but  it  is  a  principle  of 
proof  in  order  that  this  circumstance  may  be  supplied  by  means  of 
witnesses. 

Such  cases  are  also  excepted  in  which  it  shall  have  been  impossible  to 
obtain  written  proof,  as  well  as  the  cases  expressly  excepted  by  the  law. 

Art.  94.  Title  21,  Book  Fourth,  of  the  Civil  Code,  is  thus  supple- 
mented. 

§  4.  Aleatory  Contracts. 

Art.  95.  Gambling  and  betting  do  not  produce  any  action  nor  ex- 
ception.    He  who  wins  cannot  enforce  payment. 

If  he  who  loses  pays,  he  shall,  in  every  case,  have  a  right  of  action 
for  the  recovery  of  what  he  paid. 

Article  2283  of  the  Civil  Code  is  amended  in  these  terms. 

§  5.  Pubuc  Instruments.     Registration. 

Art.  96.  The  omission  on  the  part  of  the  notary  of  the  notices  pre- 
scribed in  Chapter  3,  Title  42,  Book  Fourth,  of  the  Civil  Code,  does  not 
annul  the  instrument  the  subject  of  this  lack  of  formality;  but  the 
Notary  committing  it  is  legally  liable. 

Art.  97.  The  record  of  writs  of  attachment  and  of  civil  suits  shall  be 
made  in  the  Office  or  Offices  of  Registration  of  the  Circuit  to  which  the 
estate  attached,  or  the  subject  of  the  suit,  may  belong. 

Art.  98.  Article  2609  of  the  Civil  Code  is  repealed. 

Art.  99.  Private  documents  which,  in  accordance  with  article  1  of  law 
34  of  March  5,  1887,  are  to  be  registered,  shall  be  presented  personally 
to  the  Registrar  by  those  subscribing  thereto,  and  the  entry  made  in 
the  respective  book  shall  be  signed  by  them  and  by  the  Registrar.  Article 
1  of  the  law  herein  cited,  is  thus  amended. 

Art.  100.  In  proceedings  of  succession  mortis  causa,  no  other  regis- 
tration fee  shall  be  charged  than  that  corresponding  to  the  instrument 
of  protocolization  of  the  process  in  the  office  of  the  notary. 

§  6.  Rent  Charges.     (Censos). 

Art.  ioi.  A  rent  charge  is  constituted  when  a  person  contracts  the 
obligation  of  paying  to  another  an  annual  interest,  acknowledging  the 
corresponding  capital  and  charging  realty  belonging  to  him  with  the 
liability  for  the  interest  and  capital. 

This  interest  is  called  rent  or  annuity  (censo  6  canon) ;  the  person  who 
pays  it,  censatario,  and  his  creditor,  censualista  (annuitant). 

Art.  102.  The  rent  charge  be  constituted  by  testament,  by  donation, 
sale  or  in  any  other  manner  equivalent  thereto. 


569 

Art.  103  A  rent  charge  may  be  constituted  only  on  rural  or  urban 
property  and  including  the  soil. 

Art.  104.  The  capital  must  always  consist  or  be  estimated  in  money. 
Without  this  requisite  no  rent  charge  will  be  constituted. 

Art.  105.  The  proportion  between  the  annuity  and  the  capital  can- 
not exceed  the  quota  detemined  by  law. 

The  maximum  of  this  quota,  until  otherwise  fixed  by  law,  is  five  per 
cent  per  annum. 

Art.  106.  The  constitution  of  a  rent  charge  must  always  be  em- 
bodied in  a  public  instrument  recorded  in  the  proper  Registration  Office, 
and  without  this  requisite  it  shall  not  be  valid  as  the  constitution  of  a 
rent  charge ;  but  the  person  obliged  to  pay  the  annuity  shall  be  bound  in 
accordance  with  the  terms  of  the  testament  or  contract,  find  the  obliga- 
tion shall  be  a  personal  one. 

No  stipulation  can  be  made  for  the  payment  of  the  annuity  in  a  cer- 
tain amount  of  fruits.  The  violation  of  this  rule  shall  cause  the  consti- 
tution of  the  rent  charge  to  partake  of  a  defect  causing  nullity. 

Art.  107.  Every  rent  charge,  even  though  stipulated  as  of  a  per- 
petual character,  is  redeemable  at  the  will  of  the  person  paying  it. 

Art.  108.  The  person  paying  the  annuity  cannot  bind  himself  to  re- 
deem it  within  a  certain  period ;  any  stipulation  of  this  character  shall 
be  considered  as  not  written. 

Art.  109.  A  stipulation  for  the  non-alienation  of  the  estate  subject 
to  the  rent  charge  is  not  valid  in  the  constitution  of  a  rent  charge,  nor  is 
any  which  imposes  upon  the  person  paying  the  annuity  more  charges 
than  those  expressed  in  this  law:  any  stipulation  to  the  contrary  shall 
be  considered  as  not  written. 

Art.  no.  The  person  charged  with  the  payment  of  the  annuity  shall 
be  under  the  obligation  of  paying  it  from  year  to  year,  unless  the  consti- 
tutive act  shall  fix  another  period  for  the  payments. 

Art.  in.  The  obligation  of  paying  the  annuity  always  follows  the 
ownership  of  the  estate  subject  thereto,  even  with  regard  to  the  pay- 
ments due  prior  to  the  acquisition  of  the  estate;  reserving  always  the 
right  of  the  annuitant  to  proceed  against  the  person  charged  with  the 
payment  who  is  in  default,  even  when  he  shall  cease  to  possess  the  estate 
and  reserving,  furthermore,  the  action  of  warranty  of  the  new  possessor 
of  the  estate  against  the  proper  person. 

Art.  112.  The  person  charged  with  the  payment  is  not  bound  for 
the  payment  of  the  principal  nor  for  the  annual  payments  which  fell 
due  before  the  acquisition  of  the  estate  subject  to  the  charge,  except- 
ing with  said  estate ;  but  he  is  bound  with  all  his  property  for  the  pay- 
ment of  the  annuities  falling  due  during  the  time  he  has  been  in 
possession  of  the  estate. 

Art.  113.  The  provisions  of  the  two  preceding  articles  shall  lie  even 
though  the  estate  shall  have  lost  a  large  portion  of  its  value,  or  should 
have  become  totally  unproductive. 


570 

But  the  person  charged  with  the  payment  shall  be  discharged  from 
any  obligation  by  placing  the  estate,  in  the  condition  in  which  it  may 
be,  at  the  disposition  of  the  annuitant,  and  paying  the  payments  due, 
according  to  the  preceding  article. 

Nevertheless,  if  through  the  fraud  or  grave  fault  of  the  person  charged 
with  the  payment,  the  estate  should  be  destroyed  or  rendered  unpro- 
ductive, he  shall  be  liable  for  the  damage. 

Art.  i  14.  Even  though  an  estate  subject  to  a  rent  charge  be  divided 
by  a  hereditary  succession,  the  rent  charge  shall  continue  on  the  entire 
estate,  and  it  cannot  be  divided  without  the  consent  of  the  annuitant. 

The  consent  of  the  annuitant  is  also  necessary  in  order  to  reduce  to  a 
determinate  part  of  the  estate  subject  to  the  rent  charge,  that  which 
has  been  imposed  upon  the  entire  estate,  or  to  transfer  the  rent  charge 
to  another  estate. 

The  division,  reduction  or  transfer  of  the  rent  charge  to  which  the 
preceding  paragraphs  refer,  shall  always  be  made  by  a  recorded  public 
instrument;  and  if  this  formality  be  lacking,  the  original  rent  charge 
shall  subsist. 

Art.  115.  For  the  division,  reduction  or  transfer  of  a  rent  charge 
which  does  not  belong  in  absolute  ownership  to  the  annuitant  or  of 
which  the  latter  is  only  the  usufructuary,  in  addition  to  the  consent  of 
the  annuitant,  the  judicial  approval  shall  be  necessary. 

Art.  116.  If  in  the  case  of  the  preceding  article  it  should  be  desired 
to  divide  into  parts  a  rent  charge  upon  an  entire  estate  divided  by  a 
hereditary  succession,  in  making  the  division  of  the  rent  charge,  there 
shall  be  taken  into  consideration  the  amount  of  the  capital  of  said  rent 
charge  and  the  value  given  by  expert  appraisal  to  the  parts  into  which 
the  hereditary  estate  originally  subject  to  the  rent  charge  may  have 
been  divided. 

The  division  of  the  rent  charge  having  been  ordered,  the  Judge  shall 
direct  that  the  respective  persons  who  have  participated  in  the. division, 
execute  and  record  public  instruments  stating  the  part  of  the  rent  charge 
which  each  participant  is  to  continue  recognizing,  and  thus  as  many  dis- 
tinct and  independent  rent  charges,  separately  redeemable,  shall  be  con- 
stituted, as  there  are  parts  into  which  the  hereditary  estate  originally 
subject  to  the  rent  charge  may  have  been  divided. 

In  the  absence  of  the  recorded  instruments  which  each  participant  in 
the  division  is  to  execute,  the  original  rent  charge  shall  subsist,  and  each 
share  of  the  hereditary  participants  shall  be  charged  with  the  responsi- 
bility for  the  entire  rent  charge. 

If  the  division  of  the  rent  charge  should  result  in  less  than  four  hun- 
dred pesos  of  the  original  capital  falling  to  one  share,  the  rent  charge 
cannot  be  divided,  and  each  share  shall  be  responsible  for  the  entire 
charge. 

Art.  117.  In  the  event  of  the  reduction  of  the  rent  charge  to  a  deter- 


57i 

minate  portion  of  the  estate  subject  thereto,  and  in  the  case  of  the 
transfer  of  the  rent  charge  to  another  estate,  when  a  rent  charge 
is  in  question  which  does  not  belong  in  absolute  ownership  to  the  annui- 
tant or  of  which  the  latter  is  only  the  usufructuary,  the  formalities  and 
conditions  prescribed  in  the  preceding  article  shall  be  observed. 

The  insufficiency  of  the  new  estate  or  share  to  support  the  charge 
shall  be  just  cause  for  the  Judge  to  withhold  his  approval  or  to  order 
the  reduction  or  transfer  of  the  rent  charge,  and  the  estate  or  share  shall 
be  considered  as  insufficient,  when  the  total  sum  of  the  charges  which  it 
may  have  to  support  exceeds  one  half  its  value. 

Among  the  charges  shall  be  included  the  rent  charge  and  special  mort- 
gages encumbering  the  estate. 

The  transfer  or  reduction  shall  be  made  with  the  formalities  above 
prescribed,  and  in  the  absence  thereof,  the  original  rent  charge  shall 
subsist. 

Art.  i  i  8.  In  the  division,  reduction  or  transfer  of  a  rent  charge  belong- 
ing to  a  municipality,  or  to  public  institutions  or  to  another  moral 
person,  the  same  formalities  which  have  been  stated  shall  be  observed, 
without  prejudice  to  the  provisions  on  the  same  subject  which  special 
laws  may  prescribe. 

Art.  119.  The  redemption  of  a  rent  charge  is  the  payment  of  the 
capital  which  constitutes  it. 

Art.  120.  When  the  annuitant  is  the  absolute  owner  of  the  rent 
charge,  he  must  execute  a  public  instrument  of  the  redemption,  and 
upon  said  instrument  being  recorded,  the  rent  charge  will  be  fully 
extinguished. 

Art.  121.  When  the  rent  charge  does  not  belong  in  absolute  owner- 
ship to  the  annuitant,  the  redemption  shall  be  made  by  the  consign- 
ment of  the  capital  to  the  order  of  the  Judge,  who,  consequentlv  de- 
clares it  redeemed. 

This  declaration  having  been  registered  in  the  proper  office  of  Regis- 
tration, the  rent  charge  is  completely  extinguished;  but  in  the  case 
referred  to  in  this  article,  the  annuitant  shall  be  obliged  to  again  con- 
stitute the  rent  charge  with  the  capital  consigned. 

Art.  122.  A  person  charged  with  the  payment  of  a  rent  charge  who 
does  not  owe  back  payments,  may  redeem  the  rent  charge  whenever  he 
shall  desire. 

Art.  123.  The  rent  charge  cannot  be  redeemed  in  parts,  unless  the 
annuitant  shall  agree  to  the  partial  redemption. 

Art.  124.  The  rent  charge  perishes  by  the  complete  destruction  of 
the  estate  subject  thereto,  by  complete  destruction  being  understood 
that  which  causes  the  soil  to  disappear  entirely. 

If  the  soil  should  reappear,  even  though  in  part  only,  the  entire  rent 
charge  shall  revive ;  but  nothing  shall  be  due  as  annuities  for  the  inter- 
mediate time 


572 

The  person  subject  to  the  payment  of  the  rent  charge,  shall  be  dis- 
charged from  the  obligation  of  any  longer  recognizing  the  rent  charge, 
in  the  case  of  the  preceding  paragraph,  upon  placing  the  estate  at  the 
disposal  of  the  annuitant. 

Art.  125.  The  personal  and  real  actions  of  the  annuitant  prescribe 
in  thirty  years,  both  with  regard  to  the  payments  falling  due  during  said 
thirty  years  as  with  regard  to  the  capital  of  the  rent  charge  which  is 
completely  extinguished  by  the  prescription. 

Art.  1 26.  Every  rent  charge  belonging  to  a  natural  or  juristic  person, 
without  a  charge  of  restitution  or  transmission,  and  without  any  other 
encumbrance  whatsoever,  may  be  disposed  of  by  the  annuitant  inter 
vivos  or  by  testament,  or  he  will  transmit  it  ab  intestato,  according  to 
the  general  rules. 

Art.  127.  In  the  cases  of  forced  transmission  in  which  the  succession 
is  to  be  perpetual,  or  to  a  designated  limit,  the  order  of  succession  shall 
be  that  established  by  the  act  constitutive  of  the  rent  charge,  or  of  the 
successive  usufructs  which  may  have  been  converted  into  rent  charges 
in  accordance  with  the  pertinent  legal  provisions,  and  in  what  said  con- 
stitutive act  does  not  provide,  the  regular  order  of  succession  described 
in  the  following  article  shall  be  observed,  which  does  not  extend  to  the 
rent  charges  corresponding  to  the  ecclesiastical  benefices  called  collalive 
chaplaincies  (capcllanias  colativas). 

Art.  128.  1.  The  first  one  called  shall  be  succeeded  by  his  legitimate 
descendants  from  degree  to  degree,  personally  or  by  representation,  the 
male  excluding  the  female  in  each  degree,  and  the  elder  the  younger  in 
each  sex. 

2.  In  the  event  of  the  expiration  of  the  direct  line  by  the  death  of  an 
annuitant  without  leaving  legitimate  descendants,  having  the  right  to 
succeed  him,  it  shall  be  transferred  to  his  nearest  ascendants  in  the  same 
line  who  has  legitimate  descendants,  and  the  latter  shall  succeed  from 
degree  to  degree,  personally  and  by  representation,  the  male  excluding 
the  female  in  each  degree,  and  the  elder  excluding  the  younger  in  each 
sex. 

3.  If  all  the  descendants  of  the  first  one  called  shall  have  passed  away, 
the  second  and  his  legitimate  posterity  shall  succeed  in  the  same  terms. 

4.  The  legitimate  posterity  of  all  those  expressly  called  by  the  con- 
stitutive act  having  been  exhausted,  no  person  or  line  shall  be  under- 
stood as  called  to  succeed  by  virtue  of  an  implied  or  presumed  substitu- 
tion of  any  kind,  and  the  rent  charge  shall  be  considered  vacant. 

Art.  129.  Vacant  rent  charges  which  may  have  some  charge  in 
favor  of  a  pious  object,  or  one  of  education  or  charity,  shall  be  awarded 
in  full  to  the  pious  foundation  or  establishment,  or  to  the  educational 
or  charitable  institution  to  which  the  charge  may  belong :  the  foundation 
or  establishment  shall  enjoy  the  rent  charge  with  the  charges  to  which 
it  may  be  subject. 


573 

The  respective  Circuit  Judge  shall  make  the  award,  which  must  be 
registered  in  the  proper  office. 

Art.  130.  Vacant  rent  charges,  not  comprised  in  the  provisions  of 
the  preceding  article,  belong  to  the  municipality  in  which  the  estates 
subject  thereto  may  be  situated. 

Art.  131.  In  the  cases  in  which  the  succession  is  by  lines  and  with 
a  right  of  representation,  every  person  called  to  or  excluded  from  the 
order  of  succession  by  the  constitutive  act,  shall  be  presumed  to  be  so 
with  all  his  posterity  for  ever;  and  only  express  provisions  of  the  con- 
stitutive act  can  be  opposed  to  this  presumption,  in  so  far  as  they  may  be 
incompatible  therewith. 

Art.  132.  If  children  legitimated  by  marriage  participate  with  other 
legitimate  children,  the  age  of  the  legitimated  child  shall  be  counted 
from  the  day  of  the  legitimation.  If  legitimated  children  only  partici- 
pate, the  age  of  each  legitimated  child  shall  be  counted  from  the  date  of 
his  birth. 

Art.  133.  The  natural  children  shall  not  be  considered  as  called,  un- 
less expressly  so  stated  in  the  constitutive  act,  and  in  such  case  only  the 
natural  children  acknowledged  with  the  legal  formalities  shall  be 
admitted  to  the  succession. 

The  other  illegitimate  children  shall  not  enjoy  this  right  in  any  case ; 
but  they  may  be  called  directly  and  nominally  as  strangers. 

Art.  134.  If  two  or  more  children  called  on  to  succeed  shall  be  born 
at  the  same  birth,  without  it  being  possible  to  ascertain  the  priority  of 
the  birth,  the  rent  charge  shall  be  divided  among  them  in  equal  parts, 
and  in  each  one  of  them  the  trunk  shall  be  succeeded  to  in  accordance 
with  the  constitutive  act. 

The  charge  to  which  the  rent  charge  may  be  subject  shall  be  divided 
in  the  same  manner. 

Art.  135.  When  by  the  order  of  succession  two  rent  charges  should 
fall  to  one  person,  and  one  of  them,  according  to  its  constitution,  should 
be  incompatible  with  the  other,  the  person  to  whom  both  fall,  in  what- 
soever words  the  clause  of  incompatibility  may  be  couched,  shall  have 
the  power  to  choose  that  which  he  may  desire,  and  he  shall  be  understood 
as  excluded  forever  from  the  other,  personally  and  by  representation ; 
and  the  said  other  one  shall  be  succeeded  to  according  to  the  constitutive 
act  as  if  said  person  had  never  existed. 

Final  Part. 

Various  Provisions. 

(Only  those  relating  to  the  Civil  Code  are  included  herein.) 

Art.  321.  By  virtue  of  article  5  7  and  of  this  law,  transitory  article  H  of 
the  Constitution  has  produced  all  its  effects.     Consequently,  the  legisla- 


574 

tion  of  the  extinguished  States  is  abolished,  excepting  the  provisions  of  a 
sectional  administrative  character,  and  those  of  police,  that  is  to  say 
those  on  matters  whose  regulation  is  under  the  departmental  Assemblies 
in  accordance  with  articles  185  and  186  of  the  Constitution.  The  pro- 
visions of  this  character  shall  continue  in  force  as  departmental  ordi- 
nances, in  so  far  as  not  contrary  to  the  Constitution  and  the  laws  of  the 
Republic. 

Art.  322.  Rights  acquired  in  accordance  with  the  abolished 
legislation  of  the  extinguished  States,  shall  subsist  according  to  the 
rules  established  in  the  First  Part  of  this  law. 

Art.  324.  In  the  Codes  adopted  the  denominations  of  Corporations 
and  officials,  such  as  United  States  of  Colombia,  State,  Territory,  Pre- 
fect, Corregidor,  and  the  others  which  by  virtue  of  the  change  of  insti- 
tutions require  in  some  cases  a  technical  substitution,  shall  be  applied 
to  those  to  whom  they  correspond  by  resemblance  and  logic. 

Art.  326.  The  provisions  of  article  54  of  law  32  of  1886,  do  not 
authorize  editors  to  change  the  authentic  numeration  of  legal  provisions 


LAW  30  OF  1888 
(February  25) 

WHICH  AMKNDS  THE  JUDICIAL  CODE  AND  VARIOUS  OTHER  LAWS. 

The  National  Legislative  Council 
Decrees: 

Civil  Code. 
Marriage. 

Art.  34.  A  marriage  contracted  in  accordance  with  the  rites  of  the 
Catholic  Religion,  annuls  ipso  jure  a  purely  civil  marriage  previously 
celebrated  by  the  contracting  parties  with  another  person. 

Art.  35.  For  purely  civil  purposes,  the  law  recognizes  the  legitimacy 
of  the  children  conceived  before  a  civil  marriage  is  annulled  by  virtue  of 
the  provisions  of  the  preceding  article. 


575 

Art.  36.  A  man  who  having  contracted  civil  marriage,  later  marries 
another  woman  in  accordance  with  the  rites  of  the  Catholic  Religion,  is 
obliged  to  furnish  congruous  support  to  the  first  wife  and  the  children 
had  by  her,  until  she  shall  contract  a  Catholic  marriage. 

Quasi-Contract  of  Community. 

Art.  37.  In  the  division  of  common  tenements,  the  provisions  of 
articles  2335,  2336,  2337,  2338,  2339,  2340,  of  the  Civil  Code  shall  be 
observed. 

35  of  law  57  of  1887. 

Art.  38.  When  any  of  those  possessing  land  in  common  shall  apply 
to  the  Circuit  Judge  for  the  division  and  award  of  the  right  correspond- 
ing to  him,  the  Judge,  within  twenty-four  hours  next  after  the  presen- 
tation of  the  petition,  shall  order  that  said  division  be  made  and  that 
all  the  co-owners  appear  in  person  or  through  an  attorney  in  fact,  within 
sixty  days,  and  produce  the  titles  of  ownership  showing  in  a  trust- 
worthy manner  the  right  which  each  may  have  in  the  common  property. 

224  of  law  57  of  1887. 

Art.  39.  Notice  of  the  order  of  the  Judge  shall  be  served  ex  proprio 
motu,  personally,  upon  the  persons  interested  and  upon  the  adjoining 
owners  who  may  be  in  the  place  of  the  proceedings;  and  by  means  of 
edicts  posted  in  the  capitals  of  the  Circuits,  upon  absentees.  Edicts  shall 
also  be  ordered  posted  in  the  capitals  of  the  districts  where  co-owners 
or  adjoining  owners  may  reside,  when  their  residence  is  known  and 
provided  that  the  Districts  be  not  situated  at  more  than  thirty  miria- 
meters  from  the  capital  of  the  Circuit  in  which  the  estate  is  situated 
and  where  the  proceedings  are  being  held. 

Art.  40.  The  edicts  shall  be  posted  the  same  day  the  division 
is  decreed,  in  the  capital  of  the  Circuit,  and  shall  remain  posted 
for  sixty  days ;  in  distant  Districts  they  shall  be  posted  for  ten  days ; 
and  in  either  case,  the  dates  of  posting  and  removal  of  the  edicts 
shall  be  recorded.  The  Judge  or  Judges  commissioned  to  post  the 
edicts  in  distant  Districts,  are  obliged  to  order  them  posted  the  same 
day  they  are  received,  and  return  them  ex  proprio  motu  upon  the  very 
day  upon  which  the  period  for  which  they  are  required  to  be  posted, 
expires,  in  order  that  they  may  be  attached  to  the  record. 

Art.  41.  When  the  division  of  an  estate  held  in  common  is  requested, 
the  boundaries,  the  number  and  names  of  the  persons  known  to  be 
interested,  the  right  corresponding  to  each  of  them,  the  places  or  local- 
ities where  situated,  the  servitudes  of  waters  and  rights  of  way  which  it 
enjoys  or  which,  are  a  charge  thereon,  the  various  kinds  of  lands,  the 
watering  places  and  waters  running  therethrough,  shall  be  clearly 
stated. 

1 


576 

Art.  42.  The  citation  having  been  made,  publicly  of  personally,  all 
those  who  believe  they  have  a  right  to  the  common  estate,  shall  present, 
within  the  eight  days  next  after  the  removal  of  the  edicts  in  the  place 
where  the  proceedings  are  held,  all  the  documents  or  titles  of  former 
ownership  from  the  person  or  persons  from  which  the  titles  of  the 
actual  possessors  were  originally  derived,  and  the  documents  which 
clearly  establish  the  right  they  enjoy.  In  the  petition  with  which  these 
documents  are  exhibited,  a  succinct  statement  shall  be  made  of  the  rights 
leading  down  from  the  common  origin. 

Art.  43.  The  Judge,  in  view  of  the  documents  referred  to  in  the  pre- 
ceding article,  shall  declare  who  are  the  interested  co-owners  and  shall 
fix  the  day  (which  shall  not  be  less  than  three  nor  more  than  seven  after 
the  period  allowed  for  the  filing  of  the  papers)  and  the  hour  at  which  all 
the  persons  interested  who  may  have  presented  themselves  and  who 
shall  have  been  classified  as  such  shall  hold  a  general  .meeting.  Notice 
of  this  order  shall  be  served  by  means  of  an  edict  posted  in  the  office  of 
the  Judge  until  the  day  of  the  meeting. 

Art.  44.  The  day  and  hour  fixed  having  arrived,  the  Judge  shall  pre- 
side over  and  call  the  meeting  to  order,  the  minutes  of  which  shall  be 
authorized  by  the  Secretary,  and  the  election  by  a  majority  of  votes 
shall  be  proceeded  with  of:  1.  An  administrator;  2.  Three  arbitrators; 
3.  Two  surveyors;  4.  Three  appraisers;  this  shall  be  done  by  each 
co-owner  voting,  in  the  first  case,  for  one  individual  upon  one  ballot,  for 
two  in  the  third,  and  for  three  in  the  second  and  fourth  cases.  The  votes 
shall  be  scrutinized  by  two  of  the  co-owners  whom  the  Judge  may  desig- 
nate. A  minute  shall  be  made  by  the  Secretary  of  the  proceedings  as  to 
these  appointments,  and  the  meeting  shall  not  adjourn  until  the  minutes 
shall  have  been  signed  by  the  persons  present,  including  the  Judge  and 
the  Secretary.     These  minutes  shall  be  added  to  the  record  of  the  case. 

Art.  45.  The  non-attendance  of  some  of  the  persons  interested  sup- 
poses that  the  persons  absent  defer  to  the  appointments  of  those  present. 

Art.  46.  The  appointments  mentioned  shall  be  conferred  upon  per- 
sons residing  in  the  place  where  the  estate  may  be  situated  or  who  go 
there  for  the  discharge  of  their  respective  functions;  they  shall  be  com- 
municated by  the  Judge  at  his  own  instance,  who  shall  fix  a  reasonable 
period  for  the  entering  of  an  appearance  and  taking  possession,  taking 
into  consideration  the  conditions  of  going  and  coming  and  ten  days  more. 
Should  they  not  accept  or  not  appear  on  the  day  fixed  in  the  notice  of 
their  'appointment,  they  shall  be  replaced  by  others  who  shall  be  ap- 
pointed by  the  Judge  on  the  petition  of  one  or  more  of  the  parties. 

Art.  47.  In  the  division  of  the  common  tenements,  each  co-owner 
shall  have  at  the  meeting,  or  acts  thereby  resolved  upon,  as  many  votes 
as  the  quota  of  the  person  having  the  smallest  interest  can  be  included 
in  the  quota  corresponding  to  them. 

Art.  48.  If  all  the  co-owners  should  decide  at  the  meeting  that  the 


577 

surveying  be  done  without  the  necessity  of  surveyors,  the  latter  shall  not 
be  appointed ;  but  if  an  absolute  majority  should  require  it,  the  appoint- 
ment is  indispensable.  There  shall  be  only  one  surveyor  and  one  ap- 
praiser, if  all  agree  thereto.  Express  mention  shall  be  made  upon  the 
minutes  of  these  agreements,  and  the  appointments  shall  be  made  in 
accordance  therewith. 

Art.  49.  When  an  estate  held  in  common  shall  not  admit  of  easy 
division,  the  sale  thereof  shall  be  proceeded  with,  in  accordance  with  the 
provisions  contained  in  the  Civil  Code,  and  the  price  shall  be  divided 
among  the  participants  pro  rata,  without  it  being  admissible  to  make  the 
division  along  imaginary  lines. 

Art.  50.  The  office  of  arbitrator  is  obligatory,  and  those  appointed 
thereto  cannot  be  excused  from  serving  for  other  causes  than  those  which 
inhibit  them  from  the  exercise  of  municipal  offices  whose  acceptance  is 
compulsory.  The  Administrator,  Surveyor,  and  Appraisers  are  not 
under  the  obligation  of  accepting ;  but  if  they  accept,  it  is  their  duty  to 
discharge  their  respective  functions  unless  they  plead  and  prove  just 
cause,  such  as  a  physical  impediment,  illness  of  the  father,  mother,  wife 
or  children  or  grave  injury  to  interests.  It  shall  be  the  duty  of  the  Judge 
to  hear  and  pass  on  the  excuse  or  resignations,  and  ex  proprio  motu 
call  a  new  meeting  of  the  co-owners  for  the  election  of  those  who  are  to 
replace  them. 

Art.  5 1 .  Those  appointed  are  challenged  when  after  their  taking  pos- 
session the  person  challenging  shall  prove  that  a  just  cause  therefor  has 
arisen,  such  as  enmity  or  the  fact  of  having  become  a  participant  in  the 
land  after  having  been  appointed  surveyor,  arbitrator  or  appraiser. 

Art.  52.  In  every  case  in  which  a  general  meeting  of  co-owners  is  to 
be  held,  the  administrator  of  the  common  tenement  shall  represent  the 
absentees,  and  shall  have  as  many  votes  as  correspond  to  them,  accord- 
ing to  article  14. 

Art.  53.  The  right  of  an  individual  being  well  known  and  not  subject 
to  doubt,  he  must  be  included  in  the  list  of  co-owners,  even  though  he 
should  not  have  appeared  to  request  it.  He  shall  be  represented  by  the 
administrator  appointed  by  the  co-owners  who  have  entered  an  appear- 
ance in  the  proceedings,  and  his  absence  shall  in  no  case  interrupt  the 
division. 

Art.  54.  When  the  co-owners  shall  abandon  their  action  or  not  ap- 
point special  attorneys  in  fact  to  represent  them  in  the  proceedings  of 
division,  the  latter  shall  be  continued  with  the  administrator. 

Art.  55.  After  the  employees  who  must  take  part  in  the  division  in 
accordance  with  article  44,  shall  have  been  appointed  and  shall  have 
entered  upon  the  discharge  of  their  duties,  the  functions  of  the  Circuit 
Judge  shall  cease  in  the  matter,  and  he  shall  turn  the  record  of  the  pro- 
ceedings over  to  the  arbitrators  for  their  use.  Nevertheless,  should  it 
become  necessary  to  replace  any  of  these  employees  by  reason  of  their 


578 

death  or  other  legitimate  cause,  the  Judge,  at  the  instance  of  the  arbitra- 
tors, shall  call  a  general  meeting  of  the  co-owners  for  the  appointment  of 
the  official  who  may  be  absent  or  unable  to  continue  discharging  his 
duties,  and  after  the  appointment  shall  have  been  made,  he  shall  com- 
municate it  to  the  arbitrators  for  the  continuation  of  the  proceedings. 

Art.  56.  The  record  having  been  received  by  the  arbitrators,  they 
shall  appoint  a  Secretary  to  authorize  their  acts  and  make  them  public ; 
and  immediately  upon  his  entering  on  the  discharge  of  his  duties,  they 
shall  fix  a  period  of  not  more  than  thirty  nor  less  than  fifteen  days,  for 
the  persons  interested  to  appear  before  them  and  state  all  that  may  tend 
to  elucidate  their  rights'.  The  order  fixing  such  period,  all  other  orders 
made  by  the  arbitrators,  and  their  decisions,  shall  be  communicated  to 
the  persons  interested  by  means  of  edicts  posted  in  the  Circuit  Court  for 
a  period  of  eight  days,  after  which  they  shall  be  attached  to  the  record 
with  the  respective  notes  of  posting  and  removal. 

Art.  57.  The  following  are  the  duties  of  the  arbitrators: 

1.  To  decide  any  question  referring  to  the  division  of  the  common 
estate  in  view  of  the  documents  which  the  persons  interested  should 
have  presented  to  the  Circuit  Judge,  in  accordance  with  the  provisions 
of  article  42,  and  which  such  Judge  may  have  turned  over  to  them. 

2.  To  give  the  surveyors  the  instructions  necessary  for  the  perform- 
ance of  their  duties,  expressing  therein  the  boundaries  of  the  common 
estate  and  its  value ;  the  number  of  persons  interested  among  whom  it  is 
to  be  divided ;  the  right  corresponding  to  each ;  the  servitudes  to  which 
the  estate  may  be  subject  and  those  which  it  may  have  in  its  favor,  pro- 
viding how  they  must  conform  to  equity ;  the  place  where  his  portion  is 
to  be  adjudicated  to  each  co-owner ;  the  place  where  the  payment  of  the 
charges  on  the  estate  must  be  assured ;  the  person  or  persons  who  are  to 
take  charge  of  the  portions  representing  any  rent  charge,  and  the  part 
to  be  applied  to  expenses,  if  the  persons  interested  do  not  consign  with 
the  administrator  the  quotas  which  each  is  to  contribute. 

3.  To  conciliate,  and  if  this  should  not  be  possible,  to  decide  the  con- 
troversies between  the  co-owners,  and  employ  all  the  means  that,  in  their 
judgment,  may  lead  to  a  compromise  or  amicable  composition,  in  the 
event  that  questions  as  to  boundaries  should  arise  between  the  latter  and 
the  adjoining  owners. 

4.  To  decide  objections  made  to  appraisements,  and  all  doubts  in  the 
minds  of  the  surveyors. 

5.  To  make  orders  in  furtherance  of  justice  (para  mejor  proveer)  upon 
doubtful  points  in  their  opinion  which  can  be  elucidated. 

Art.  58.  The  incidental  questions  (articulaciones)  which  one  or  more 
of  the  co-owners  may  raise  during  the  proceedings  shall  be  communicated 
to  the  others,  by  means  of  an  edict,  and,  if  they  should  contradict  them 
and  they  should  involve  questions  of  fact,  proof  thereon  shall  be  ad- 
mitted for  eight  days,  and  they  shall  be  decided  without  further  pro- 
ceedings. 


579 

Art.  59.  The  arbitrators  shall  decide  impartially  and  in  accordance 
with  the  principles  of  equity  upon  all  the  points  submitted  to  their 
decision ;  there  is  no  appeal  from  their  resolutions. 

Art.  60.  It  shall  be  the  duty  of  the  appraisers  to  make  a  fair  appraise- 
ment of  the  different  kinds  of  land,  taking  into  consideration  their 
greater  or  less  fertility,  the  more  or  less  abundance  of  waters  and  ma- 
terials, the  greater  or  less  proximity  to  the  towns  and  roads,  climate, 
situation,  and  all  the  advantages  or  disadvantages  which  increase  or 
reduce  its  value.  —  _ 

Art.  61.  Doubts  which  the  surveyors  may  entertain  as  to  the  limits  of 
separation  of* various  kinds  of  land,  must  be  decided  by  the  appraisers, 
who  shall  rubricate  upon  the  plan  the  ends  of  lines  whose  position  may 
have  been  indicated  for  the  division  of  two  or  more  portions  of  land  of 
different  values. 

Art.  62.  It  shall  be  the  duty  of  the  administrator  to  collect  in  money 
the  quotas  which  the  persons  interested  may  have  to  contribute  to  the 
expenses  of  division,  either  for  the  opening  of  paths  and  roads,  or  for  the 
payment  of  the  surveyors  and  the  other  expenses  which  may  be  neces- 
sary. The  expenses  shall  be  distributed  in  proportion  to  the  rights  and 
shall  be  collected  in  installments,  as  they  may  become  necessary.  The 
administrator  in  person  or  through  agents,  shall  take  part  in  the  open- 
ing of  paths,  in  the  manner  indicated  by  the  surveyors. 

Art.  63.  When  any  co-owner  should  not  wish  or  should  fail  to  con- 
tribute the  proportionate  part  corresponding  to  him  in  money,  any  other 
co-owner  may  defray  the  expense,  who  shall  be  indemnified  with  an 
equivalent  value  in  land  taken  from  that  which  is  to  be  adjudicated  to 
the  person  who  did  not  wish  to  pay  his  respective  quota ;  and  if  no  one 
should  desire  to  contribute,  a  portion  of  land  of  sufficient  value  to  cover 
all  the  expenses,  shall  be  segregated  and  sold. 

Art.  64.  It  shall  be  the  duty  of  the  surveyors  to  make  the  division 
beginning  by  preparing  a  topographical  plan  of  the  land  whose  division 
has  been  requested,  subjecting  themselves  in  everything  to  the  instruc- 
tions of  the  persons  interested,  to  the  decisions  of  the  arbitrators  and  to 
the  provisions  of  the  following  articles. 

Art.  65.  The  total  value  of  the  land  must  be  distributed  in  proportion 
to  the  rights  of  each;  and  thereafter  there  shall  be  awarded  to  each 
party  a  portion  of  land  of  the  value  which  may  have  fallen  to  him. 

Art.  66.  If  the  land  should  be  of  uniform  value,  the  area  shall  be  dis- 
tributed in  parts  proportionate  to  the  right  of  each ;  if  the  appraisals  be 
different,  the  division  shall  be  made  ad  valorem,  and  the  amount  falling 
to  each  shareholder  shall  be  adjudicated  according  to  appraisement. 

Art.  67.  In  one  lot  of  land  of  a  value  uniform  to  equal  actions  or  rights 
there  correspond  areas  equivalent  in  price  and  extent,  and  vice  versa. 

Art.  68.  In  the  distribution,  no  one  shall  have  the  right  to  be  awarded 
a  specific  part  of  land  in  preference  to  another;  but  such  section  as  may 


58o 

be  awarded  by  the  arbitrators  must  be  accepted ;  unless  there  should  be 
thereon  a  house  or  any  other  establishment,  or  it  should  be  under  culti- 
vation, in  which  case  the  adjudication  shall  be  made  there  without  sub- 
dividing the  part  of  each,  if  this  be  possible. 

Art.  69.  But  in  no  case  can  a  person  interested  use  and  enjoy  the 
establishments  (fundaciones) ,  sites  and  places  which  another  person  in- 
terested in  the  common  thing  may  have  made  and  worked  or  be  in  occu- 
pation of,  protected  by  fences,  ditches,  paths,  or  other  marks,  which  may 
have  been  re'spected  and  which  serve  to  acquire  possession,  unless  it 
should  appear  when  the  adjudications  are  made,  that  more  than  is  due 
him  was  occupied,  with  a  right  to  dispose  of  the  improvements  thereon ; 
but  the  person  to  whom  the  portion  of  land  having  such  improvements 
may  be  adjudicated,  shall  be  under  the  obligation  of  paying  for  such 
improvements,  which  shall  be  appraised  by  two  experts,  one  to  be  ap- 
pointed by  the  owner  of  the  land  and  the  other  by  the  owner  of  the 
improvements,  the  procedure  prescribed  in  Chapter  VI,  Title  II,  Book 
II  of  the  Judicial  Code  being  observed. 

Art.  70.  If  the  co-owners  request  their  share  in  a  single  parcel,  and 
the  arbitrators  should  thus  determine,  this  shall  be  done  if  another  per- 
son interested  having  an  equal  right  to  the  adjudication  in  that  point 
do  not  object  thereto.  In  such  case  the  portion  of  land  requested  by 
both,  must  be  awarded  to  them  pro  rata. 

v  Art.  71.  The  portions  must  be  as  regular  as  possible,  in  the  form  of 
regular  polygons  or  similar  thereto,  an  endeavor  being  made  to  have  the 
dividing  lines  straight.  But  if  the  cultivation  of  a  shareholder  should  be 
of  very  irregular  form,  they  may  be  encroached  upon  in  part,  reserving 
his  right  to  demand  of  the  latter  payment  for  the  improvement  he  may 
receive  at  a  just  appraisal  by  the  arbitrators,  provided  that  said  part 
encroached  upon  falls  to  his  right. 

Art.  72.  The  division  shall  be  made  in  such  manner  that  the  parts 
into  which  the  common  estate  is  divided,  form  such  a  group  that  the 
boundaries  touch  and  there  is  no  interruption  to  the  continuity  between 
the  parts  and  their  adjoining  ones. 

Art.  73.  In  order  to  avoid  rights  of  way  between  the  portions  adju- 
dicated, each  owner  must  leave  free  five  meters  on  each  side  of  the 
dividing  lines,  so  that  the  roads  may  run  by  perimeters,  and  thus 
permit  of  preserving  the  servitudes  established  on  the  lot  of  land  in 
general,  unless  the  parties  interested  shall  arrange  their  rights  in  a 
different  manner. 

Art.  74.  Waters  are  a  servitude  constituted  in  all  and  each  of  the 
tenements  adjudicated  in  the  part  in  which  the  beds  are  and  must  be 
intercepted  by  the  same. 

Art.  75.  Servitudes  of  waters  and  rights  of  way  may  be  established 
upon  the  parts  adjudicated  to  some,  if  this  should  be  absolutely  neces- 
sary in  order  that  the  neighboring  and  adjacent  tenements  may  enjoy 


5«i 

this  benefit,  an  endeavor  being  made  that,  without  the  necessity  of  a 
servitude,  the  parties  be  benefited  by  the  waters,  in  so  far  as  possible. 

Art.  76.  Whenever  in  accordance  with  the  preceding  article  it  should 
become  necessary  to  establish  a  servitude  of  waters  or  rights  of  way, 
the  owner  of  the  servient  tenement  must  be  indemnified  in  accordance 
with  a  just  appraisal  of  experts  appointed  by  the  persons  interested. 
If  the  servitude  be  of  waters,  the  owner  of  the  dominant  tenement  is 
under  the  obligation  of  keeping  the  bed  clear,  under  which  condition 
the  servitude  is  executed  or  granted. 

Art.  77.  In  every  case  it  is  indispensable  that  between  the  portions 
awarded  to  the  co-owners  there  be  only  natural  limits  or  straight  lines 
of  a  determinate  position  and  length. 

Art.  78.  The  division  having  been  made  upon  the  plan,  the  survey- 
ors shall  fix  upon  the  ground  the  points  which  may  be  homologous,  and 
the  persons  interested  or  the  administrator  shall  place  the  permanent 
boundary  marks  upon  the  respective  points  which  surround  the  point 
adjudicated.  This  demarcation  is  indispensable,  and  without  it,  judi- 
cial possession  cannot  be  conferred. 

Art.  79.  The  portions  of  land  awarded  for  the  charges  upon  the 
lands,  shall  be  marked  off  by  the  administrator  or  the  person  interested 
to  whom  they  may  be  awarded. 

Art.  80.  Upon  the  conclusion  of  the  division,  the  surveyors  shall 
prepare  a  statement  of  the  work  done  in  the  measuring,  division,  adjudi- 
cation, description  of  the  dividing  lines,  naming  and  numbering  the 
marks  and  important  points.  This  report,  together  with  the  plan,  upon 
which  the  scale  of  construction,  the  area  of  the  land  and  its  value,  shall 
be  indicated,  shall  be  submitted  to  the  approval  of  the  arbitrators,  and, 
after  having  been  attached  to  the  record  of  the  case,  shall  be  transmitted 
to  the  Circuit  Judge  for  filing. 

Art.  81.  When  in  the  judgment  of  the  arbitrators,  there  are  portions 
of  land  whose  division  may  be  very  difficult,  such  lands  shall  remain 
in  community.  In  this  case,  as  well  as  in  all  cases  in  which  for  any 
reason  the  community  of  a  common  channel  for  the  drainage  of  a  lake, 
river  or  swamp  belonging  to  the  community,  or  extending  upon  its 
lands,  should  subsist,  if  one  or  more  should  desire  to  open  and  deepen 
the  channels,  and  open  a  new  one  to  drain  or  preserve  the  lands,  all  must 
contribute  to  the  cost  thereof  in  proportion  to  the  benefits  derived, 
according  to  the  opinion  of  experts,  and  should  they  not  do  so,  those 
who  execute  the  work  shall  be  entitled  to  indemnity  of  one-half  the 
increased  value  which  the  lands  of  the  person  failing  to  contribute,  may 
have  acquired  by  virtue  of  such  work :  for  the  purpose  of  ascertaining 
this  increased  value  the  lands  shall  be  appraised  by  experts,  before  the 
work  is  undertaken,  and  again  after  completion  thereof. 

Art.  82.  Whenever  any  co-owner  should  request  the  division  and 
the  rest  should  desire  the  community  to  continue,  the  division  shall  be 


582 

confined  to  a  segregation  from  the  common  land  of  the  part  corresponding 
to  the  petitioner.  In  such  case  all  the  co-owners  are  obliged  to  con- 
tribute to  the  expense  of  the  general  survey  of  the  land  and  the  prepara- 
tion of  the  plan,  and  the  co-owner  or  co-owners  requesting  the  division 
shall  be  obliged  to  defray  the  cost  of  the  separation  of  their  respective 
portions  from  the  common  estate. 

Art.  83.  After  the  appointment  of  the  officials  who  are  to  take  part 
in  the  division  proceedings,  the  Judge  shall  assign  the  arbitrators  and 
the  administrator  an  equitable  remuneration  for  their  work,  taking  into 
consideration  the  nature  of  the  business  and  the  difficulties  offered. 
The  appraisers  shall  be  paid  in  accordance  with  the  second  paragraph 
of  article  196  of  the  Judicial  Code ;  but  if  the  fees  assigned  them  thereby 
are  not  commensurate  with  the  work,  the  Judge  may  increase  them. 

Art.  84.  For  the  purpose  of  decreeing  the  division  of  the  thing  held 
in  common,  sales,  exchanges,  alienations  of  any  kind,  concessions  of 
rights  and  licenses,  the  establishment  of  new  workings  and  ground- 
works, the  extension  of  the  old  ones  and  all  that  which  might  in  any 
manner  alter  the  state  of  the  thing  held  in  common  during  the  proceed- 
ings, are  prohibited. 

Art.  85.  From  the  prohibition  established  in  the  preceding  article  is 
excepted  the  alienation  of  all  the  rights,  groundworks  and  workings 
which  each  co-owner  may  have  in  the  common  estate  at  the  time  the 
division  is  decreed.  The  alienation  shall  be  placed  on  record  in  the 
court  taking  cognizance  of  the  proceedings,  with  the  proper  instrument 
duly  recorded,  which  shall  be  added  to  the  record,  and  thereafter  the 
purchaser  shall  be  considered  a  party  in  the  place  of  the  vendor.  This 
alienation  cannot  be  made  to  various  persons,  but  to  one  only. 

Art.  86.  No  co-owner  can  trespass  upon  the  possessions  or  part  of 
the  land  which  another  may  have  enclosed  by  fences,  nor  deprive  him  of 
the  enjoyment  of  any  right  of  which  he  may  be  in  possession ;  and  should 
he  do  so,  the  co-owner  prejudiced  may  institute  the  necessary  summary 
proceedings  to  retain  possession  to  which  he  may  be  entitled. 

Art.  87.  When  the  statement  referred  to  in  article  42  should  not  suc- 
cinctly determine  the  order  of  succession  of  the  rights  of  a  co-owner  up 
to  the  common  origin,  the  Judge  shall  always  declare  him  interested 
when  the  documents  presented  shall  establish  the  right  which  he  enjoys, 
said  circumstance  being  made  of  record;  and  in  such  case  the  arbitra- 
tors, after  securing  such  data  as  they  may  consider  necessary,  shall  de- 
termine, in  accordance  with  the  principles  of  equity  and  impartially 
(verdad  sabida  y  buena  fe  guardada),  what  quota  of  the  land  corresponds 
to  the  right  claimed. 

Art.  88.  The  co-owners  who,  after  the  division  of  an  estate  shall 
have  been  decreed,  should  attempt  to  prevent  it  by  acts  of  violence  or  in 
any  other  manner,  shall  be  criminally  prosecuted  for  the  crime  of  damage 
to  another's  property,  without  prejudice  to  their  being  prosecuted  also 


5§3 

for  the  other  common  offenses  which  they  may  commit  with  such  end  in 
view ;  and  it  is  the  duty  of  the  authorities  to  proceed  ex  proprio  motu  to 
institute  the  proper  summary  proceedings  when  they  shall  have  know- 
ledge of  the  act,  or  when  it  shall  be  denounced  to  them  by  a  private  indi- 
vidual. 

Art.  89.  In  instruments  executed  in  the  sale  of  rights  in  a  common 
estate,  the  vendor  is  obliged  to  state  clearly  the  value  of  the  original 
right  which  he  acquired  under  any  title,  specifying  the  title ;  what  rights 
he  has  sold  and  what  he  reserves. 

Instruments  executed  without  stating  the  circumstances  mentioned 
in  this  article,  are  null. 

Art.  90.  The  salaries  of  the  employees  and  other  expenses  which  the 
execution  of  this  law  may  cause,  shall  be  considered  as  included  in  the 
respective  budget. 


584 

LAW  32  OF  1886* 

(October  26), 
,  On  Literary  and  Artistic  Property. 

The  National  Legislative  Council  : 
Decrees: 
Chapter  e. 
Definitions  and  General  Provisions. 

Art.  1 .  Literary  or  artistic  property,  or  the  right  of  authorship,  con- 
sists in  the  power  which  the  laws  grant  authors  for  a  determinate  period 
and  after  the  execution  of  certain  formalities,  to  exploit  their  works. 

Art.  2.  By  author  is  understood,  for  legal  purposes,  he  who  has  pro- 
duced an  original  work,  and  also  he  who  edits,  compiles,  quotes  or 
abridges  other  works,  provided  that  the  editing,  compilation,  quotation 
or  abridgment,  be  made  within  the  limits  permitted  by  international 
laws  and  conventions. 

Art.  3.  The  benefits  of  this  law  extend  to  all  Colombians  who  may 
publish  their  works  abroad,  even  though  it  be  in  a  nation  with  which 
there  is  no  convention  as  to  literary  property. 

Art.  4.  He  who  publishes  for  the  first  time  an  unpublished  work  hav- 
ing no  owner,  availing  himself  of  a  manuscript  of  which  he  is  the  owner, 
is  assimilated  to  an  author. 

Art.  5.  The  State,  Corporations  and  juristic  persons,  also  enjoy  the 
right  of  literary  property,  during  the  time  they  are  in  legal  existence. 

Art.  6.  By  a  literary  or  artistic  work  is  understood,  for  legal  purposes, 
any  production  which  is  the  result  of  a  personal  work  or  effort  of  intelli- 
gence, of  imagination  or  of  art. 

Not  only  a  completely  original  production,  but  also  those  productions 
whose  elements,  although  taken  from  other  authors,  shall  have  been 
selected  with  judgment,  given  a  new  form,  and  appropriated  with  intelli- 
gence to  a  more  or  less  general  use,  shall  be  considered  as  one's  own  work. 

Art.  7.  Philosophical  or  scientific  ideas,  thoughts  or  methods,  and 
other  human  knowledge,  aside  from  the  special  form  which  the  author 
or  artist  may  have  given  thereto,  do  not  constitute  private  property,  and 
may  be  freely  presented  under  new  forms. 

Art.  8.  Scientific  inventions  or  discoveries,  the  application  of  which 
is  practical  and  exploitable,  do  not  constitute  property;  and  they  are 

*  This  law  is  herein  embodied  as  it  has  been  incorporated  in  the  Civil  Code  by 
article  83  of  law  153  of  1887. 


585 

only  a  matter  of  privilege,  in  accordance  with  article  120,  subdivision 
20  of  the  Constitution. 

Art.  9.  Every  work  of  the  mind,  after  having  been  consummated  by 
printing,  engraving,  or  any  other  similar  means,  and  after  the  legal 
formalities  have  been  observed,  constitutes  property  which  is  governed 
by  the  common  law  without  further  limitations  than  those  imposed  by 
the  law.    m 

Art.  10.  Literary  and  artistic  property  pertains  to  authors  during 
their  lifetime,  and  after  their  death  those  who  may  have  acquired  the 
same  legally,  shall  enjoy  it  for  a  period  of  eighty  years. 

Art.  11.  Literary  property  is  subject  to  the  limitations  imposed  upon 
the  press  by  article  42  of  the  Constitution. 

The  right  of  literary  property  is  also  limited  by  the  censorship  which 
in  accordance  with  the  laws,  the  Government  may  establish  with  regard 
to  dramatic  productions  for  reasons  of  public  morality  and  national  honor. 

Art.  12.  No  one  can  reproduce  any  work  either  in  whole  or  in  part 
without  the  permission  of  the  author.  This  prohibition  comprises  the 
literary  or  artistic  works  not  published  nor  registered  which  may  have 
been  stenographed,  noted  or  copied  during  the  reading,  execution,  or 
public  or  private  performance  thereof. 

Art.  13.  Any  person  may,  without  restriction,  reprint  the  works  be- 
longing to  the  public  ownership ;  but  if  they  should  be  of  a  known  author 
his  name  cannot  be  suppressed,  nor  can  interpolations  be  made  therein 
without  the  proper  distinction  between  the  original  text  and  the  editorial 
modifications  or  additions. 


Chapter  2. 
Of  the  transmission  of  literary  property.     Legal  and  International  Effects. 

Art.  14.  Literary  property  is  transmissible  like  any  movable  property. 
The  author  may  assign  it  under  a  gratuitous  or  onerous  title,  and  the 
cession  may  be  total  or  partial.  If  there  should  be  no  express  stipulation 
limiting  the  right  of  the  assignee,  the  latter  shall  have  that  pertaining  to 
the  author  or  to  his  heirs. 

The  author  may,  likewise,  by  an  express  declaration,  abandon  his 
work  to  the  public  ownership. 

Art.  15.  In  cases  in  which  literary  property  should  be  transmitted 
by  acts  inter  vivos,  it  shall  pertain  to  the  assignees  during  the  lifetime  of 
the  author  and  for  eighty  years  more,  if  he  does  not  leave  forced  heirs. 
But  if  there  should  be  forced  heirs,  the  right  of  the  assignees  shall  termi- 
nate twenty-five  years  after  the  death  of  the  author;  and  then  the 
property  shall  pass  to  the  forced  heirs  for  a  period  of  fifty-five  years. 

Art.  16.  The  assignee  does  not  acquire  the  right  to  introduce  in  the 
work  passing  to  his  ownership,  any  alterations  or  modifications,  without 


586 

the  permission  of  the  author  or  of  his  family,  if  the  former  should  have 
died. 

Art.  17.  The  author  assuming,  in  consideration  of  a  stipulated  com- 
pensation, the  preparation  of  a  literary  or  artistic  work,  does  not  acquire 
thereover  any  right  of  ownership. 

In  such  cases  the  ownership  is  vested  in  the  person  ordering  the  work 
and  he  who  executes  it  has  only  the  right  to  recover  the  compensation 
agreed  upon. 

Art.  18.  {Transitory).  The  greater  duration  of  the  literary  property 
shall  benefit  the  authors  whose  privilege  shall  not  have  lapsed  the  day 
of  the  promulgation  of  this  law,  and  also  the  assignees  in  the  same  case ; 
but  it  does  not  exempt  them  from  the  obligation  to  record  the  same. 

Art.  19.  (Transitory).  Authors  whose  privilege  shall  have  lapsed 
before  the  promulgation  of  this  law,  may  likewise  recover  the  owner- 
ship of  their  works,  and  enjoy  the  new  legal  benefits,  upon  making  the 
proper  record  and  deposit,  as  established  in  Chapter  III,  or  only  the 
record  if  the  editions  should  be  exhausted. 

Publishers  who  may  have  re-printed  said  works  while  they  were 
public  property,  cannot  be  prevented  from  continuing  to  sell  the  copies 
already  printed ;  but  they  are  obliged  to  number  and  mark  them  under 
the  inspection  of  the  author,  in  order  to  prevent  the  fraud  of  a  new 
edition. 

Art.  20.  {Transitory).  The  surviving  wife  and  children  of  a  Colom- 
bian author  may  likewise  recover  the  ownership  of  the  works  of  the 
latter,  under  the  conditions  established  in  the  preceding  article. 

Art.  21.  A  work  not  inscribed  upon  the  Register  within  the  legal 
term,  shall  become  public  property  for  ten  years,  from  the  date  upon 
which  the  right  to  record  it  terminated. 

Art.  22.  During  the  year  following  the  ten  which  may  have  elapsed 
since  said  day,  the  author,  or  his  successor  in  right,  may  recover  the 
ownership  of  his  work  upon  having  it  recorded  upon  the  Register ;  but  he 
cannot  prevent  the  sale  of  the  copies  which  may  have  been  freely 
printed  during  the  ten  years.  But  he  has  the  right  to  take  the  precau- 
tion referred  to  in  article  1 9  (second  paragraph) . 

If  the  author  should  not  avail  himself  of  this  second  opportunity,  the 
work  shall  definitely  become  public  property. 

Art.  23.  If  the  works  should  be  published  in  successive  parts  and 
not  at  one  time,  the  terms  fixed  in  the  preceding  articles  shall  begin 
from  the  time  the  work  may  have  terminated. 

Art.  24.  An  author  who  shall  bequeath  his  own  manuscript  or  who 
should  be  enjoying  the  ownership  of  a  printed  work,  may  by  testament 
postpone  the  printing  thereof  or  prohibit  its  reprinting  within  the  term 
of  eighty  years. 

Art.  25.  Natives  of  States  in  which  the  Spanish  language  is  spoken 
and    whose    legislation    recognizes   in    the    Colombians    the  right    of 


587 

literary  property  in  the  terms  established  in  this  law,  shall  enjoy  in 
Colombia  the  rights  granted  thereby,  without  the  necessity  of  a  treaty 
or  diplomatic  negotiations,  by  private  proceedings  before  the  Judge 
of  competent  jurisdiction. 

Art.  26.  In  the  international  conventions  entered  into  with  the 
Government,  a  reservation  of  the  rights  of  translation  cannot  be  stipu- 
lated, unless  works  are  in  question  which  are  written  in  a  foreign  lan- 
guage and  printed  in  a  country  where  the  Spanish  language  is  the 
dominant  one,  as  are  works  in  Latin,  Basque  or  Catalonian,  printed 
in  Spain. 

Chapter  III. 

Of  the  Inscription  and  other  Legal  Formalities. 

Art.  27.  A  general  register  of  literary  property  shall  be  opened  in  the 
Department  of  Public  Instruction,  and  special  registers  in  the  depart- 
ments of  the  Departmental  Governments. 

The  general  register  shall  be  made  up  of  the  records  which  may  be 
made  therein  by  the  authors  or  their  attorneys  in  fact,  and  of  those 
which  must  be  forwarded  every  six  months  by  the  Department  Govern- 
ors, made  in  the  respective  departmental  register. 

Art.  28.  In  order  to  enjoy  the  benefits  of  this  law,  it  is  necessary  that 
the  person  interested  request  and  make  the  respective  record,  upon  the 
general  or  departmental  register,  within  the  term  and  under  the  con- 
ditions stated  in  this  chapter. 

The  certificate  of  the  record  to  be  delivered  to  the  person  recording 
a  work,  constitutes  a  legal  presumption  of  ownership  as  long  as  the 
contrary  be  not  established. 

Art.  29.  The  record  is  governed  by  the  following  provisions : 

1.  The  petition  for  the  record  shall  be  made  in  accordance  with  the 
form  published  by  the  Department  of  Public  Instruction. 

2.  If  the  work  should  be  a  printed  one,  three  signed  copies  thereof 
shall  be  deposited  in  the  respective  registry :  two  of  which  shall  be  des- 
tined to  the  National  Library  and  the  other  to  the  Department  of  Public 
Instruction. 

If  the  record  be  made  in  the  departmental  register,  the  Governor  shall 
transmit  two  copies  to  the  Department  of  Public  Instruction,  one  for 
the  Department  and  the  other  for  the  National  Library ;  the  third  copy 
shall  be  destined  to  the  Departmental  Library,  if  there  be  any,  or  to 
another  public  institution  of  the  capital  of  the  Department. 

3.  If  the  work  should  be  a  periodical  one,  it  shall  be  registered  and 
deposited  by  collections  of  series  not  covering  periods  of  more  than  six 
months.  The  record  which  the  owner  of  a  periodical  may  make,  shall 
at  the  same  time  assure  his  right  and  that  of  reproduction  pertaining 
to  his  collaborators. 


•      588 

4-  If  the  work  should  have  been  produced  in  a  public  performance 
and  should  not  be  printed,  only  one  manuscript  copy  thereof  shall  be 
deposited. 

5.  If  the  work  should  be  artistic,  and  there  should  be  only  one,  as  a 
painting,  a  bust  and  others  of  a  pictorial  or  plastic  order,  the  obligation 
to  register  and  deposit  is  waived ;  without  the  owner  by  such  waiver 
being  excluded  from  the  enjoyment  of  the  benefits  of  this  law. 

Art.  30.  The  term  granted  for  the  registration  shall  be  one  year  from 
the  date  of  the  publication  of  the  work ;  but  the  author  shall  enjoy  the 
benefits  of  the  law  from  the  day  the  publication  was  begun,  and  shall 
lose  them  only  if  he  shall  fail  to  comply  with  the  legal  formalities  within 
the  year  granted  for  the  inscription. 

Art.  31.  No  registration  fee  whatsoever  shall  be  charged  for  the 
recording  of  works. 

Art.  32.  Every  act  transmitting  literary  or  artistic  property  must 
be  embodied  in  a  public  document,  which  shall  be  recorded  in  the  proper 
Register;  and  without  this  requisite  the  person  acquiring  it  cannot 
enforce  his  rights. 

The  law,  and  in  its  absence,  the  regulations,  will  fix  a  tax  upon  the 
transmission  of  literary  property. 

Chapter  IV. 

Special  Provisions  regarding  different  kinds  of  Works. 

§  1.  Letters  and  Private  Papers. 

Art.  33.  Letters  are  the  property  of  the  persons  to  whom  they  may 
be  addressed,  but  not  for  the  purpose  of  their  publication.  This  right  is 
vested  only  in  the  author  of  the  correspondence,  excepting  a  case  in 
which  a  letter  must  be  produced  in  court  as  evidence,  and  that  its  publi- 
cation is  authorized  by  a  court  of  competent  jurisdiction. 

Art.  34.  Letters  of  persons  who  have  died,  cannot  be  published  dur- 
ing the  eighty  years  after  their  death,  without  the  permission  of  the 
family  council. 

The  law,  or  the  regulations,  will  determine  what  is  understood  by  the 
family  council. 

§  2.  Oral  Lessons  and  Speeches. 

Art.  35.  A  salaried  professor  preserves  the  right  to  publish  his  lec- 
tures, unless  there  be  an  express  stipulation  to  the  contrary. 

Art.  36.  Parliamentary  speeches,  after  having  been  officially  pub- 
lished, may  be  freely  reproduced  in  periodicals  or  otherwise. 

But  parliamentary  speeches  of  one  author  cannot  be  published  in  a 
separate  collection  without  the  permission  of  such  author. 


589 


§  3-  Transcriptions  and  Anthologies . 

Art.  37.  An  author  may  be  cited  by  the  transcription  of  the  necessary 
passages,  provided  that  such  passages  should  not  be  so  numerous  and  in 
such  sequence  that  they  may  be  considered  by  experts  as  a  fictitious 
and  substantial  reproduction,  which  redounds  to  the  prejudice  of  the 
work  from  which  they  are  taken. 

Art.  38.  Selected  sections  in  prose  or  verse  may  likewise  be  repro- 
duced from  collections  destined  to  schools  or  which  have  a  specific  liter- 
ary purpose,  provided  that  by  reason  of  the  abundance  of  works  of  one 
author  such  reproduction  does  not  prejudice  him,  and  provided  it  be  not 
done  against  the  express  will  of  the  respective  writer  or  poet. 

These  anthologies  or  florilegia  constitute  property  in  favor  of  the  col- 
lector only  as  to  the  new  order  adopted  in  the  distribution,  and  the 
preambles,  notes  or  comments  accompanying  them. 

§  4.  Translations  and  Abridgments. 

Art.  39.  A  work  cannot  be  translated  or  abridged  without  the  per- 
mission of  the  author. 

But  the  works  of  an  author  who  is  not  a  Colombian,  and  printed  in 
countries  having  a  foreign  language,  may  be  freely  translated  in  whole  or 
in  part,  with  the  sole  obligation  of  not  concealing  the  name  of  the  author. 

Art.  40.  Translators  or  abridgers  are  the  owners  of  their  own  trans- 
lations or  abridgments,  but  if  they  should  not  have  acquired  from 
the  author  the  exclusive  right  of  presenting  their  works  in  such  new 
forms,  they  cannot  object  to  the  publication  of  different  translations  or 
abridgments  thereof,  each  of  which  constitutes  the  property  of  him 
who  makes  it. 

Art.  41.  In  the  event  of  a  controversy  before  the  courts  as  to  whether 
a  new  translation  or  abridgment  is  a  simulated  reproduction  of  a  pre- 
vious one,  with  slight  variations,  and  without  the  intellectual  effort  from 
which  the  right  emanates,  before  a  decision  is  rendered,  an  expert  opinion 
shall  be  secured. 

§  5.   Unedited,  Anonymous  and  Posthumous  Works. 

Art.  42.  The  compilations  of  works  or  information  which  are  public 
property,  shall  constitute  private  property,  if  any  new  work  in  the 
system  and  coordination  be  noticed. 

The  compiler  cannot  object  to  the  publication  by  others  of  the  same 
information  under  a  new  system  and  in  a  different  form. 

Art.  43.  He  who  shall  take  a  work  which  is  public  property  and  reduce 
it  in  size  or  extract  its  substance  therefrom  in  any  manner,  is  the  owner 
of  his  own  work,  and  may  prohibit  its  reproduction ;  but  not  that  others 
make  different  condensations  of  the  same  work. 


590 

Art.  44.  The  collection  of  popular  couplets  and  stories  constitutes 
property  when  it  is  the  result  of  direct  investigations  made  by  the  col- 
lector or  his  agents  and  is  the  subject  of  a  special  literary  plan. 

Art.  45.  Manuscripts  preserved  in  the  public  archives  and  libraries, 
cannot  be  copied  nor  edited  without  the  proper  permission. 

The  Government  shall  grant  such  permission  to  the  first  one  requesting 
it,  setting  a  term  not  to  exceed  three  years  for  the  publication  thereof, 
and  granting  him  the  benefits  thereof  as  exclusive  editor  for  a  period  of 
ten  to  forty  years,  as  the  case  may  be,  as  an  encouragement  for  the  work 
of  publication  of  ancient  or  curious  manuscripts. 

If  the  time  for  the  publication  having  arrived,  the  assignee  should  not 
have  made  it,  he  shall  lose  the  right  acquired  absolutely. 

Art.  46.  In  anonymous  or  pseudonimous  works,  the  publisher  who,  as 
assignee,  exercises  all  the  rights  of  ownership,  shall  be  considered  the 
owner,  until  the  author  shall  prove  his  authorship.  The  author  having 
been  discovered,  he  shall  continue  to  be  subrogated  to  the  publisher  in 
the  possession  of  the  rights  pertaining  to  him. 

Art.  47.  Posthumous  works  shall  be  considered  not  only  those  pub- 
lished after  the  death  of  the  author,  but  also  those  which  have  acquired 
publicity  orally  during  the  life  of  the  author,  and  have  not  been  printed 
until  after  his  death ;  and  also  the  printed  works  which  the  author  at  the 
time  of  his  death  shall  have  left  rearranged  or  increased  or  corrected  in 
such  manner  that  they  can  be  considered  new  works. 

Art.  48.  The  owners  by  succession  or  another  title,  of  a  posthumous 
work,  have  the  right  of  authorship  thereover ;  and  they  may  print  it  sep- 
arately or  together  with  other  works  which  may  not  have  left  the  private 
ownership. 

But  they  cannot  publish  them,  under  the  penalty  of  losing  any  exclu- 
sive right,  together  with  other  works  which  may  already  have  become 
public  property. 

§  6.  Works  in  Collaboration,  Newspapers. 

Art.  49.  The  author  or  publisher  of  a  compilation  is  the  owner  thereof, 
and  has  with  regard  to  his  collaborators  only  the  obligations  which  may 
have  been  imposed  upon  him  by  the  contract  of  the  hire  of  the  industry, 
in  which  contract  various  conditions  may  be  imposed. 

A  collaborator  who  shall  not  have  reserved  to  himself,  by  an  express 
stipulation,  any  right  of  co-ownership,  can  claim  only  the  price  agreed 
upon,  and  the  publisher  of  the  compilation  to  which  he  gives  his  name, 
shall  be  considered  as  the  author  in  the  eyes  of  the  law. 

Art.  50.  Works  in  collaboration  constitute  an  indivisible  work  while 
kept  in  common  as  prepared ;  and  the  duration  of  the  ownership  in  their 
second  period  shall  be  computed  from  the  death  of  the  author  who  sur- 
vives the  others. 


59i 

~Q  But  each  of  the  collaborators  may  freely  dispose  of  the  part  which  he 
contributed  when  this  shall  have  been  stipulated  when  the  common  work 
was  begun. 

Art.  5 1 .  The  publishers  or  managers  of  newspapers,  in  the  absence  of 
an  agreement  to  the  contrary,  have  the  right  to  publish  on  one  occasion 
only  the  articles  of  the  writers  paid  by  them,  which  writers  preserve  the 
ownership  of  their  works  and  the  right  to  publish  them  in  such  form  as 
they  may  see  fit. 

Art.  52.  Productions  published  in  newspapers  may  be  reprinted  in 
other  newspapers,  it  being  obligatory  that  the  paper  from  which  they 
were  transcribed  be  cited. 

A  case  is  excepted  in  which  the  newspaper  expressly  states  that  the 
author  or  publisher  reserves  the  right  of  reproduction  as  to  specific 
articles. 

Art.  53.  If  the  title  of  a  work  be  not  a  generic  one,  but  individual  and 
characteristic,  as  is  especially  the  case  with  newspapers  and  reviews,  it 
cannot  be  adopted  for  another  similar  work  without  the  proper  permis- 
sion of  the  owner  thereof,  in  order  that  the  public  may  not  be  led  into 
error,  or  the  second  be  considered  as  a  reprint  of  the  first,  which  consti- 
tutes a  case  of  fraud. 

§  7.  Official  Documents,  Suits  and  Pauses. 

Art.  54.  The  reproduction  of  the  laws,  regulations,  and  other  public 
acts  is  permitted  to  all,  under  the  obligation  of  strictly  conforming  to  the 
official  edition. 

Private  individuals  may  also  publish  the  Codes  and  legislative  col- 
lections; with  notes  and  commentaries,  each  author  being  the  owner 
of  his  own  commentary. 

Art.  55.  The  parties  are  the  owners  of  the  pleadings  which  they  may 
have  presented  in  their  own  name  in  any  suit  or  cause,  provided  that 
they  shall  have  paid  the  fees  therefor;  but  they  cannot  publish  them 
without  the  permission  of  the  adjudging  tribunal,  which  shall  grant  such 
permission  provided  that  there  is  no  objection  to  the  publication. 

The  attorney  who  may  have  authorized  the  pleadings  may  form  col- 
lections thereof,  with  the  permission  of  the  respective  party  and  of  the 
Tribunal.*  . 

Art.  56.  In  order  to  publish  copies  or  transcripts  of  closed  causes  or 
suits,  the  permission  of  the  adjudging  tribunal  is  necessary,  which,  taking 
into  consideration  the  honor  and  tranquillity  of  the  families  interested  in 
the  matter,  shall  grant  or  refuse  such  permission  in  its  discretion,  without 
further  remedy. 

If  two  or  more  persons  should  request  the  same  permission,  the  Tri- 
bunal, according  to  the  conditions,  may  grant  it  to  some  and  refuse  it  to 

*  Repealed  by  art.  338  of  law  57  of  1887. 


592 

others,  imposing  the  restrictions  which  it  may  consider  advisable.    There 
is  no  remedy  against  its  decisions.* 

§  8.  Dramatic  and  Musical  Works. 

Art.  57.  No  dramatic  or  musical  composition  can  be  produced  in  any 
public  theatre  or  place,  either  in  whole  or  in  part,  without  the  previous 
permission  of  the  owner. 

But  if  the  work  should  not  be  a  national  one,  but  original  of  another 
country  in  which  the  Spanish  language  is  spoken  and  with  which  there 
exists  reciprocity  in  matters  of  literary  property,  such  prohibition  ap- 
plies only  to  works  whose  authors  shall  have  expressly  reserved  this 
right. 

Art.  58.  The  owners  of  dramatic  or  musical  works  may  freely  fix  the 
charges  of  representation  in  granting  their  permission,  and  if  they  should 
fail  to  do  so,  they  may  claim  only  such  as  are  established  by  the  Regu- 
lations. 

Art.  59.  Popular  songs  are  public  property  and  the  publisher  thereof 
has  no  exclusive  right  to  their  publication. 

Art.  60.  Musical  compositions,  as  well  as  arrangements,  variations, 
etc.,  on  a  theme  or  air  which  is  public  property,  constitute  the  property  of 
the  author  or  arranger  thereof. 

Arrangements  of  this  character  if  based  upon  an  original  composition, 
are  subordinated  to  the  previous  authority  of  the  original  author. 

Transpositions  are  assimilated  to  translations  in  literary  matters; 
and  an  expert  opinion  shall  be  given  before  a  decision  is  rendered  as  to 
whether  they  constitute  an  illicit  reproduction. 

§  9.  Pictorial  and  Plastic  Works. 

Art.  61.  Any  person  has  the  right  to  prevent  that  his  likeness  or  bust 
be  exposed  or  sold  without  his  authority ;  but  he  cannot  prevent  its  pos- 
session by  a  bona  fide  merchant  without  an  equitable  indemnity. 

The  reproduction  or  sale  of  a  likeness  or  bust  of  a  deceased  person 
cannot  take  place  without  the  permission  of  his  family. 

An  absolute  and  perpetual  permission  to  publish  and  sell  a  likeness  can 
be  granted  only  by  a  formal  contract. 

Art.  62.  The  question  as  to  whether  the  painter  or  sculptor  preserves 
the  right  to  reproduce  exclusively  his  work  by  engraving  or  other  similar 
means,  after  having  sold  it,  is  generally  decided  negatively,  and  in  special 
cases  in  accordance  with  the  stipulations  of  the  contract  of  sale. 

*  Repealed  by  art.  338  of  law  57  of  1887. 


593 

Chapter  V. 
Penalties. 

Art.  63.  He  who  shall  record  or  sell  as  his  own,  or  cause  to  be  published 
as  if  it  were  public  property,  a  work  which  is  private  property,  and  he  who 
shall  in  any  other  manner  encroach  upon  the  rights  recognized  and  guar- 
anteed by  this  law,  commits  fraud  or  falsification  in  matters  of  literary 
property. 

Art.  64.  A  falsification  committed  in  a  foreign  country,  also  constitutes 
a  crime,  if  it  is  sought  to  profit  from  the  results  thereof  in  Colombia ;  and 
not  only  is  he  who  imports  the  works  liable  but  also  he  who  forwards 
them  from  abroad,  and  he  who  requests  their  introduction. 

Art.  65.  He  who  reproduces  in  Colombia  works  of  private  property 
printed  in  Spanish,  in  countries  with  which  there  is  reciprocity  in  matters 
of  literary  property,  also  commits  fraud. 

Art.  66.  A  printer  who  shall  reserve  to  himself  a  greater  number  of 
copies  than  the  number  due  him  under  the  contract  with  the  author  or 
publisher,  shall  also  be  prosecuted  as  guilty  of  fraud. 

Art.  67.  The  reproduction  of  the  work  of  another  abroad,  if  it  should 
subsequently  be  introduced  in  Colombia,  as  well  as  the  falsification  of  the 
title  page,  changes  in  the  text  and  other  changes  in  the  truth  maliciously 
made  to  the  prejudice  of  the  author,  are  aggravating  circumstances. 

Art.  68.  Persons  guilty  of  fraud  shall  be  punished  by  the  imposition 
of  a  fine  ranging  from  a  sum  equal  to  the  amount  of  the  damage  caused, 
to  one  three  times  said  amount,  and  shall  lose  all  the  copies  counterfeited, 
which  shall  be  applied  to  the  defrauded  owner. 

Art.  69.  If  the  author  of  the  fraud  should  not  appear,  the  publisher* 
the  printer  and  the  seller  shall  be  successively  liable,  unless  proof  be  pre- 
sented to  the  contrary  that  they  have  acted  without  malice,  or  that  they 
were  imposed  upon  or  deceived. 

Art.  70.  He  who  shall  introduce  from  abroad  copies  of  an  illegal  edi- 
tion, shall  be  obliged  in  every  case  to  deliver  to  the  defrauded  owner  the 
copies  which  he  may  have  in  his  possession  and  to  pay  him  the  value  of 
the  copies  he  may  have  sold. 

If  it  be  established  that  the  author  gave  due  notice  to  the  booksellers 
of  the  existence  of  a  fraudulent  edition,  and  they  subsequently  introduced 
copies  thereof,  in  addition  to  the  penalty  stated,  they  shall  incur  a  fine  of 
one  hundred  to  five  hundred  pesos ;  and  in  the  event  of  a  second  offense, 
a  penalty  of  correctional  imprisonment  for  a  term  not  less  than  two  or  not 
more  than  six  months,  shall  be  added  to  the  penalties  stated. 

Art.  71.  Doctrines,  opinions,  and  systems  not  constituting  literary 
property,  in  accordance  with  article  7,  he  who  shall  reproduce  the  ideas 
under  a  different  method,  arrangement  and  execution,  shall  not  be 
guilty  of  fraud. 


594 

But  if  he  should  give  out  as  his  own  a  method  or  system  invented  by 
another,  the  author  prejudiced  shall  have  a  right  of  civil  action  and  may 
obtain  an  order  from  the  court,  directing  that  his  name  be  cited  and  the 
honor  of  the  invention  be  restored  to  him. 

Art.  72.  The  cognizance  of  all  questions  to  which  fraud  in  literary 
property  may  give  rise,  and  of  the  civil  actions  pertaining  to  the  private 
individuals  under  the  rights  granted  them  by  this  law,  shall  be  vested  in 
the  ordinary  courts. 

The  owner  of  the  work  or  he  who  may  have  acquired  his  right  of  action 
or  who  may  legally  represent  him,  has  the  right  to  bring  action. 

Art.  73.  In  the  case  of  a  controversy  as  to  whether  there  has  been  a 
legal  adaptation  of  ideas  in  a  work,  or  an  illegal  reproduction  of  the  ma- 
terial of  another,  the  Judge  or  Tribunal  taking  cognizance  of  the  matter, 
may  direct  that  an  examination  or  comparison  be  made  by  experts,  and 
in  the  absence  of  previous  decisions  establishing  a  precedent,  the  princi- 
ples sanctioned  by  the  French  or  Spanish  jurisprudence  in  the  matter  of 
literary  and  artistic  property,  shall  be  specially  observed. 

Chapter  VI. 

Final  Provisions. 

Art.  74.  The  Supreme  Government  shall  establish  the  regulations  for 
the  application  of  this  law. 

Art.  75.  Laws  1  and  2  of  Treaty  3  of  the  Granadian  Recopilation,  and 
all  legislative  provisions  in  contravention  of  this  law,  are  hereby  repealed. 

Given  in  Bogota,  October  twenty-first,  eighteen  hundred  and  eighty- 
six. 

The  President,  Juan  de  D.  Ulloa. 

The  Vice  President,      Jose  Maria  Rubio  Frade. 
The  Secretary,  Julio  A.  CorrEdor. 

The  Secretarv,  Roberto  N.  Narvaez. 


595 


INDEX. 

{References  are  to  articles  of  Civil  Code  unless  otherwise  stated.) 

Abandonment: 

Voluntary,  of  property:  See  Cession  of  Ppoperty. 
Of  animals :  See  Occupancy. 

Abduction  : 

Is  a  cause  for  nullity  of  marriage :   1 40. 

Conception  when  woman  in  power  of  abductor,  obligations  of  lat- 
ter: 330. 
Act  which  constitutes,  even  though  no  force  used :  330. 

Abintestato: 

What  is  understood  by  succession :  1009. 
See  Succession. 

Absence: 

When  disappearance  of  person  from  domicile  to  be  considered: 
96,  97. 

See  Absentee. 

Absentee. 

Provisional  possession  of  property  of:  97,  No.  6. 

Decree  of,  dissolves  conjugal  partnership  with  absentee :  99. 

To  be  granted  whom :  99. 

Person  put  in,  must  cause  inventory  to  be  made :  10 1. 

shall  represent  succession  in  judicial  proceed- 
ings: 102. 
may  sell  movables  when :  103. 
cannot  sell,  etc.,  real  property:  103. 
surety  to  be  furnished  by :  104. 
Succession  of,  to  be  opened,  when :   104. 
Absolute  possession  of  property  of,  when  to  be  granted :  98. 

Right    subordinate  to  death  of,  may  be  enforced  after  decree 

of,  106. 
Decree  of,  may  be  revoked,  when :  108. 

Rules  to  be  observed  in  revoking:   109. 
Presumption  of  death  by  disappearance :  96  et  seq. 
Who  to  be  considered,  for  purposes  of  prescription :  2529. 

Acceptance : 

Of  a  cession:  1962. 

Of  a  contract :  See  Acts  and  Declarations  of  Will. 

Of  an  inheritance :  See  Succession  Mortis  Causa,  Opening  of 

Accession  : 

Defined:  713. 


596 

Of  fruits: 

Natural : 

Hanging,  gathered  and  consumed :  7 1 5 ; 
Belong  to  whom :  718. 
Civil:  What  are:  717. 

Hanging  and  gathered :  717. 
Belong  to  whom :  718. 
0}  the  soil:  alluvion:  719. 

With  regard  to  riparian  tenements:  720. 

Soil  alternately  covered  and  uncovered  by  water  and  rule  for 

adjudication  of  alluvion  to  riparian  estates:  720,  721. 
Part  of  soil  carried  from  one  place  to  another :  722. 
Estate  inundated :  723. 

Land  uncovered  by  river  changing  course :  724,  725. 
Islands  formed  in  river :  726. 
Of  one  movable  to  another:  adjunction:  727. 

To  whom  object  united  belongs  in  different  cases  of  adjunction : 

728-731. 
Specification:  defined:  732. 
Admixture:  When  separation  may  be  demanded  and  when 

restitution  or  price :  733-735. 
Right  of  person  knowing  of  use  of  his  substance  and  cases  in 
which  all  rights  lost :  736-737. 
Of  movables  to  immovables : 

Building,  planting,  sowing  on  one's  own  land :  738. 

land  of  another :  739. 
Right  of  as  to  usufructuaries :  839. 

Accessory  Contract  : 
What  is:   1499. 

Accidentals  : 

In  contracts:  1501. 

Accretion  :  Right  of  : 
Defined:   1206. 

Takes  place  between  whom :   1 207- 1 2 1  o. 
When  portion  accruing  carries  with  it  charges  thereon :   1 2 1 1 . 
Right  of  transmission,  excludes :   1 2 1 2. 
Between  assigns  of  usufruct,  use,  habitation,  etc. :  1 2 1 3. 
Testator  may  prohibi  t :   1 2 1 4 . 

Acquets  and  Gains  : 

After  dissolution  of  community,  inventory  and  appraisal  of  prop- 
erty to  be  made :   1 82 1. 

Against  whom  inventory  and  appraisal  without  judicial  formalities 
valid:   1822. 

When  wife  presumed  to  accept :   1823. 

Penalty  of  spouse  or  heir  concealing  property  of  community:   1824. 

Fictitious  accumulation  to  community  assets :   1825. 

Right  of  each  spouse  against  assets  and  time  for  restitution  of  what 
may  belong  to  him :   1826. 

Liability  for  deterioration  of  things  returned :   1827. 

What  due  to  community  for  increase  due  to  natural  causes :  1827. 


597 

Hanging  fruits :  ownership  of:  1828. 

How  deductions  of  partnership  to  be  made :   1829. 

After  deductions,  residue  divided  among  spouses :   1830. 

Imputation  of  testamentary  assignments  of  deceased  spouse :   1831. 

Division  of  community  property  subject  to  rules  for  hereditary  par-. 

tition:   1832. 
Liability  of  wife  for  debts  of  community. :   1 833. 
Husband  liable  for  all  debts  of  community :   1 834. 
Actions  of  the  spouses  and  their  heirs :   1 835. 
Renunciation  of  by  wife: 

Powers  of  wife  and  heirs  of  age,  as  to :  1 837. 

Requisite  for,  by  minors :   1 837. 

When  wife  may  renounce :  1 838. 

Rescissory  action  of :   1838. 

After,  rights  of  community  and  of  husband  confounded  :  1839. 

Rights  and  obligations  of  wife  notwithstanding :   1 840. 

Accretion  in  favor  of  husband  by  renunciation  of  portion  by 
heirs  of  wife:  1841. 

Action  of  Ownership  : 
See  Revendication. 

Action  for  Reform  : 

See  Testament,  Reform  of. 

Action  of  Petition  of  Inheritance  : 
See  Inheritance,  Petition  of, 

Actions  : 

Possessory: 

Object  of:  972. 

May  be  brought  with  regard  to  what  things :  973. 

Who  may  bring:  974. 

By  and  against  heir :  975. 

Prescription  of :  976. 

Rights  of  possessor :  977. 

When  usufructuary,  user,  etc.,  may  bring  against  owner:  978. 

Ownership  pleaded  by  parties  not  considered  in  :  979. 

Proof  of  possession  arising  from  recorded  rights,  980. 

of  soil:  981. 
Rights  of  person  unjustly  deprived  of  possession :  982. 
Against  whom  action  for  restitution  may  be  brought :  983. 
Right  of  person  violently  evicted :  984. 
Acts  of  violence  with  arms :  punishment  for :  985. 

Real:  Their  source:  665. 
Legacy  of:  1185. 
Special  possessory: 
•     Right  against  construction  of  new  work,  on  ground  possessed : 
986. 
New  works  subject  to  denunciation :  987. 

Ruinous  or  old  work :  form  and  dimension  of  repairs :  988,  989. 
Liability  of  owner  if  building  falls :  990,  991,  992. 


598 

Rules  regarding  other  special  possessory  actions:  993-1002. 

Work  denounceable  belonging  to  a  number,  and  damage  suf- 
fered or  feared  by  a  number :  1003. 

Does  not  lie  against  exercise  of  legally  constituted  servitude, 
1004. 

Municipality  or  any  resident  may  bring,  when :  1005. 

Without  prejudice  to  private  rights :  1006. 

Prescription  of  action  for  recovery  of  damages :  1007. 

Acts: 

Executed  against  express  prohibition  of  law,  null :  6. 

Of  heirship:  1301. 

Of  mere  power :  2520. 

Of  ingratitude,  1485. 

Of  violence:  985. 

And  declarations  of  will : 

Requisites  in  order  that  a  person  be  obligated :  1 502. 

Who  is  legally  capable  of  binding  himself :  1 503. 

Who  incapable :  1 504. 
Obligation  in  name  of  other  with  authority :  1505. 

Stipulation  in  favor  of  third  person  without  right :   1 506. 

Promise  that  third  person  will  ratify :  1 508. 

Error  on  point  of  law  does  not  vitiate  consent :  1 509. 

Error  of  fact,  effect  of :  1510,  1511,  1512. 

Force  and  reverential  fear,  when  they  vitiate  consent:  1513, 

i5H- 
Fraud :  actions  to  which,  gives  rise :  15 15. 
not  presumed,  15 16. 
Object  of  declaration  of  will :  1 5 1 7. 
What  things  may  be :  1 5 1 8 . 
Illicit:  1 5 19. 

Right  to  succeed  live  person  cannot  be :  1520. 
Licit  in  alienation  of  certain  things :  1 52 1 . 

Agreement  not  to  demand  more  by  reason  of  approved  ac- 
count: 1522. 
Contracts  prohibited  by  law :  1523. 
No  obligation  without  real  and  licit  object :  1524. 
Renunciation  of  nullity  does  not  validate  acts  declared  invalid  by 
law:  1526. 

Adjunction: 

Denned:  727. 

See  Accession. 

Administration  :  See  Succession. 

Of  tutors  and  curators:  See  Tutorship;  Tutors;  Curators; 
Curatorship. 

Of  the  conjugal  partnership:  See  Conjugal  Partnership;  Ac- 
quets and  Gains. 

Of  general  partnership :  See  Partnership. 

Of  mandate :  See  Mandate. 

Of  the  community :  See  Community. 


599 

Adoption  : 

Defined :  269. 

Adopter,  adopted,  adoptive,  defined :  269. 

Requisites,  conditions  and  formalities  for  adoption :  270-280. 

Rights  and  obligations  arising  from :  281-283. 

Revocation  of ;  its  effects:  284-286. 

Termination  of :  287. 

Register  of:  371. 

Adult  : 

Defined:  33,  34. 

Adulterine  Children  : 
What  are:  52. 

Adultery : 

Is  cause  for  divorce  or  separation  of  spouses :  1 54. 
Woman  guilty  of.  cannot  marry  her  accomplice :   140. 
Loses  rights  to  acquets  and  gains :   161. 
Is  not  entrusted  with  care  of  children ;  1 63. 

Affinity  : 

Legitimate,  defined :  47. 
Illegitimate,  defined :  48. 
Lines  and  degrees :  48,  49. 

Age: 

Infancy:  34. 
Adult:  34. 
Minor:  34. 
Impubes:  34. 
Of  age:  34. 
Qualification  as  to: 

What  is  understood  by :  339. 

Married  male  obtains  legal  qualification  at  eighteen  years  of 
age:  340. 

Also  granted  by  court :  340. 
Who  cannot  obtain :  34 1 . 

Cannot  be  granted  without  hearing  relatives  of  minor  and  de- 
fender: 342. 
Puts  an  end  to  curatorship :  343. 
Does  not  extend  to  political  rights :  344. 
Privileges  lost  by  minor  qualified  and  prohibition  imposed  upon 

him:  345. 
How  to  be  determined  in  absence  of  proof :  400. 

Agencia  Oficiosa  :  See  Negotiorum  Gestio. 

Agency:  Agent: 

See  Mandate  ;  Mandatary. 

Aleatory  Contracts  : 
Defined:  1498. 
Principal:  2282. 

See  Life  Annuity;  Gambling. 


6oo 

Alluvion  : 

Defined:  719. 

See  Accession. 

Animals  : 

Wild:  what  are:  687. 

Domestic  and  domesticated,  what  are :  687. 

Domestic,  subject  to  ownership :  698. 

When  considered  immovables :  658. 

Obligations  of  rural  tenant  to  return  those  received :  2042. 

Number  which  each  co-owner  may  maintain  on  common  land :  233 1 . 

Liability  for  damage  caused  by  and  especially  of  wild:  2353,  2354. 

Annuity,  Life. 

See  Life  Annuity. 

Antichresis  : 

Denned:  2458. 

To  whom  thing  given  in,  may  belong :  2459. 

How  perfected :  2460. 

Right  acquired  by  creditor :  246 1 . 

Creditor  may  be  given  immovable  in,  which  he  held  in  mortgage,  or 

vice  versa:  2462. 
Rights,  obligations  and  preference  of  creditor:  2463,  2464. 
Imputation  of  fruits  to  interest :  2465. 
Stipulation  between  parties  as  to  fruits :  2466. 
Restitution  of  thing  given  in :  2467. 
Judicial,  or  pretorian  pledge :  2468. 

Aqueduct  : 

See  Servitude  of  Aqueduct. 

Architects  : 

Rules  applying  to,  who  assume  charge  of  construction  of  building, 
2061. 

Artisans  : 

Time  when  certain  actions  prescribe :  2543. 

Assault : 

A  cause  for  divorce :  1 54. 

Assign:  Testamentary: 
What  is:  10 10. 

Assignment  of  Property  : 

Inpayment:  defined:  1672. 

See  Payment  by  cession  of  property. 

Assignments  Mortis  Causa  : 
What  are:  1010. 
Testamentary: 

Assign  must  be  certain  and  determined  person :  and  exception 
to  this  rule:  11 13. 


6oi 

To  an  indeterminate  charitable  institution :  1 1 13. 

For  the  soul  of  the  testator :  1 1 1 3 . 

Left  to  the  poor :  1 1 1 3. 

Rules  for  application  of :  1 1 1 3. 
Formalities  for  distribution  of :  1 1 14,  1 1 1 5. 

Error  in  quality  or  name  of  assign :   1 1 1 6. 

Founded  on  error  of  fact :   11 17. 

Captatious  dispositions  not  valid :  1 1 1 7. 

Testamentary  dispositions  not  valid,  when :   1 1 1 8. 

Persons  in  whose  favor  no  disposition  valid :  1119,1120. 

Selection  of  assign  cannot  be  left  to  third  person :  1 1 2 1 . 

To  relatives  indeterminately :   1 1 2  2 . 

Doubtful:  1 123. 

Determinations  of  for  validity  and  exception :  1 1 24. 

Whose  execution  left  to  heir  or  legatee :  1 1 25. 

Transferred  to  person  other  than  assign,  carries  with  it  trans- 
ferable charges :  1 1 26. 

To  whom  to  be  deferred  when  repudiated  on  account  of  charges : 
1126. 

Will  of  testator  shall  prevail :  1 1 2 7. 
Conditional  testamentary: 

Definition  and  rules  to  which  subject :  1 1 28. 

Condition  of  present,  passed  or  future  event :  1 129,  1 130. 
not  to  contest  testament :  1 1 3 1 . 
of  not  contracting  marriage  and  remaining  widowed : 

1132,  II33- 

Pension  for  support  while  woman  remains  unmarried :  1 134. 

Condition  to  marry  or  not  marry  determined  person :  1 1 35. 
adopt  certain  profession,  etc. :  1 135. 

Under  a  suspensive  condition :   1 1 36. 

Testamentary  dispositions  establishing  trusts,  etc. :  1 137. 
Forced: 

Defined  and  specified :  1226. 
Limited  testamentary: 

Rules  to  which  subject :  1 1 38. 

What  is  understood  by  day  certain,  uncertain,  etc. :   1 1 39. 

From  a  day  arriving  before  death  of  testator :   1 140. 

To  an  uncertain  and  indeterminate  day :  1 1 4 1 . 

From  a  determined  and  certain  day :  1 142. 

certain  but  undetermined  day :  1 143. 
an  uncertain  day,  determined  or  not :  1 144. 

To  a  certain  day,  determined  or  not :  1 145. 

Of  periodical  prestations:  1 145. 

To  an  uncertain  but  determined  day :  1 146. 
Modal: 

What  is  understood  by  mode :  1 147. 

resolutory  clause :  1 148. 

Security  not  necessary  in :  1 149. 

When  to  the  benefit  of  assign :  1 1 50. 

Inducive  of  illegal  or  immoral  act :  1 1 5 1 . 

Conceived  in  unintelligible  terms :  1 151. 

Term  and  form  of  executing  mode :  1 1 52. 

When  mode  transmissible :  1 153. 


602 


Delivery  to  be  made  to  assign  to  carry  out  resolutory  clause : 

H54- 
For  support: 

Which  deceased  owed  certain  persons :  1227. 
Rules  regarding :  1227-1228. 
Under  a  singular  title: 

Persons  to  whom  made,  are  legatees :  1 162. 

See  arts.  29,  30,  of  law  57  of  1887,  p.  550. 
See  Legacies. 
Under  a  universal  title: 

Assigns,  are  heirs :  1 1 56. 

Assigns,  called  to  succession  under  general  terms :  1 156. 

of  residue:  1157. 
If  no  heirs,  residue  to  go  to  intestate  heirs :  1 1 58. 
Cases  in  which  quotas  assigned  complete  or  exceed  unit :  1 159, 
1 160. 

Attachment  : 

Property  not  subject  to :  1677. 

Avoidance  :  Agreement  of  : 

What  is  understood  by :  1935. 

Does  not  deprive  vendor  of  his  other  actions :  1936. 

Purchase  may  cause  contract  to  subsist  notwithstanding,  when: 

1937. 
Prescription  of :  1938. 

Bailments  : 

See  Loan  for  Use  ;  Loan  for  Consumption  ;  Deposit. 

Balconies  : 

Rules  regarding  construction  of:  935. 

Bankrupts  : 

When  they  cannot  be  tutors  or  curators :  586. 

Banks  of  Rivers,  Etc.  : 

Legal  servitude  as  to :  897  et  seq. 

Barbers  : 

•Prescription  of  certain  actions  of :  2543. 

Bastards  : 

Denned:  58. 

Bed  (of  a  river) : 

Abandoned  by  a  river,  property  of  whom :  724,  725. 
Owner  of  waters  running  in  artificial :  895. 

Bees: 

Ownership  of :  696. 

Beneficence,  Contract  of  : 
Denned:  1497. 


603 

Benefit  of  Competency  : 
What  is:  1684. 
Payment  with :  See  Payment  with  the  benefit  of  competency. 

Benefit  of  Inventory  : 
Defined:  1304. 
If  of  a  number  of  co-heirs  some  wish,  and  others  not,  all  obliged  to 

accept:  1305. 
Testator  cannot  prohibit :  1 306. 

Inheritances  which  must  be  accepted  under :  1 307,   1 308. 
When  power  to  accept  under,  lost :   1 309. 
Rules  for  preparation  of  inventory :   1 3 10. 
When  partnership  property  to  be  included  in  inventory :  1 3 1 1 . 
Who  must  be  present  at  and  who  may  object :   1 3 1 2. 
Fraud  in  formation  of :  1 3 1 3. 

Property  for  value  of  which  beneficiary  responsible :   1 3 14,  13 1 5. 
Debts  and  credits  of  beneficiary  heir  not  confounded  with  those  of 

the  succession :  13 16. 
Faults  for  which  beneficiary  heir  responsible :  1 3 1 7. 
How  beneficiary  heir  may  exonerate  himself  from  obligations  as  to 

creditors:   13 18. 
Proceedings  after  hereditary  property  exhausted :  13 19,  1320. 


Benefit  of  Separation  : 
What  is:   1435. 

As  to  what  debts  may  be  requested :  1436. 
When  not  available :  1437. 

Creditors  of  heir  have  not  right  to  demand :'  1438. 
Creditors  benefited  by  separation :   1439. 

Action  of  creditors  of  succession  against  property  of  heir ;   1440. 
Rescissory  action  of  creditors  enjoying :   1 44 1 . 
Registration  of  decree  granting :  1442. 

Bequests  : 

See  Assignments,  Testamentary. 

Betrothals  :  See  Espousals. 

Betterments  : 

See  Legitimes  and  Betterments. 

Betting  : 

See  Gambling  and  Betting. 

Bilateral  Contract: 
Defined:  1496. 

Births,  Register  of  : 

How  record  of  birth  to  be  made :  353. 

Obligations  of  certain  persons  regarding  notice  of  births:  350-352. 
Death  of  newborn  does  not  relieve  from  obligation  to  register:  354. 
What  to  be  done  when  birth  on  trip  or  in  place  not  domicile  of 
mother:  355. 

See  Register  of  Civil  Status. 


604 

Blind  Persons  : 

Cannot  be  tutors  or  curators:  586. 
witnesses  to  wills :   1068. 
Testament  of :  formalities  requisite :  1076. 

Boundaries  : 

Right  to  demand  fixing  of,  of  tenements :  900. 

Breach  of  Promise  : 

No  damages  for :   no. 

Bridges  : 

On  private  lands,  not  property  of  the  Union :  676. 

Brothers  and  Sisters  : 
Carnal:  defined:  54. 
Paternal:  defined:  54. 
Maternal  or  uterine :  defined :  54. 
Natural:  defined:  55. 

Building  : 

Collapse  of,  subject  to  usufruct :  rebuilding  of:  858. 
Liability  of  owner  of,  for  collapse,  when :  2350,  2351. 

Buyer:  See  Purchaser. 

Cafhs  : 

Liability  of  owners  of  in  certain  cases  for  necessary  deposits:  2272. 
See  Deposit. 

Cancellation  : 

What  is  understood  by  that  of  an  instrument ;  when  and  how  to  be 
made;  value  of  instruments  and  certificates  to  be  issued  by 
notaries:  2610-2614. 

See  Notaries  Public 
Of  the  record  of  a  public  instrument :  2676-268 1 . 

See  Registration  of  Public  Instruments. 

Capital  Punishment. 

When  to  be  imposed:  art.  29  of  Const.,  p.  14. 

Captatious  Provisions  : 

Not  valid  in  testaments  and  what  are  understood  to  be :   1 1 1 5. 

Carriage  : 

Legacy  of :  what  comprised  in :  11 80. 

Carrier:  2070,  2543. 

Obligations  of,  etc. :  See  Hire  of  Transportation  ;  Prescription. 

Cattle : 

Rights  of  usufructuary  of :  847. 

See  Usufruct.  * 


605 

Ownership  of,  given  in  lease  with  tenement,  and  obligations  of  lessee 

to  return  :  2042. 
Number  of  head  which  co-owners  may  allow  on  community  lands  : 

2331- 
Remedy  when  impossible  to  prevent,  trespassing  upon  other  es- 
tates: 2333. 

Cause  : 

Licit  and  illicit :  what  is  understood  by,  in  obligations :  1 524. 

Caution  : 

What  is  understood  by :  kinds  of :  59. 

Ceasing  Income  : 
What  is:  16 14. 

Cemeteries  : 

Ownership  of:  672. 

Censos:  See  Rent  Charges. 

Cession  : 

Of  personal  credits: 

Requisites  necessary  to  make  effective :  1959-1963.     Art.  33  of 
law  57  of  1887,  P-  551- 

Comprises  what :   1964. 

Liability  of  assignor  under  onerous  title :  1 965. 

Limitation  of  provisions  as  to  Code  of  Commerce :  1966. 
Of  the  right  of  inheritance: 

Liability  of  person  making  cession  under  onerous  title :  '1967. 

Rules  regarding :   1968. 
Of  litigious  rights: 

When  litigious  right  assigned :  1969. 

How  cession  may  be  made :  1970. 

Obligations  of  debtor  to  assignee :  1 97 1 . 

When  benefit  granted  debtor  ceases :  1972. 

Cession  of  Property  : 

Payment  by:  See  Payment  by  Cession  of  Property. 
Defined:  1672. 

Cestui  que  Trust  :  See  Fiduciary  Property. 

Chapels  : 

Situated  on  possessions  of  private  individuals:  enjoyment  of:  672. 

Charitable  Institution: 

Testamentery  assignment  to  indeterminate :   1 1 13. 

Children: 

Adulterine: 

What  are:  52. 
Illegitimate: 

What  are:  51,  52. 


6o6 


Incestuous: 

Defined:  52. 
Legitimate: 

Effects  of  divorce  as  to :  1 68. 
Who  are:  213.     Art.  6  of  law  57  of  1887,  p.  544. 
Presumption  of  legitimacy  in  favor  of  husband  after  certain 
number  of  days  subsequent  to  marriage :  214. 

Proof   which   husband  may  present  to  destroy  pre- 
sumption: 214. 
Adultery  of  wife  during  period  of  conception :   effect  on  ac- 
knowledgment of  child :  215. 
Who  may  question  legitimacy  while  husband  living :  216. 
Term  within  which  husband  must  question  legitimacy :  217. 
Who  may  question  legitimacy  when  husband  dead,  and  when, 

219. 
Action  of  illegitimacy  of  interested  person  and  term  for:  220, 

221. 
Persons  who  may  charge  illegitimacy,  even  though  not  inter- 
ested in  succession:  222. 
Complaint  as  to  legitimacy  not  valid  if  not  duly  made :  223. 
Condition  of  child  during  suit  as  to  legitimacy  of :  224. 
Their  rights  and  obligations : 
Principal  duty  of:  250. 

Duty  of  notwithstanding  emancipation:  251. 
with  respect  to  ascendants :  252. 
*  parents  as  to:  253. 

Personal  care  of,  in  case  of  disability  of  parents :  254. 

Parents  may  visit,  out  of  their  power :  256. 

Expenses  of  maintenance,  education,  etc.,  and  by  whom 

borne  in  event  of  death  of  parents :  257,258. 
Obligation   to   support   and  educate,   when  parents  too 

poor,  261 : 
vSubsistence  furnished  child  absent  from  paternal  home: 

261. 
Correctional  powers  of  father,  and  restriction  thereof :  262. 
Powers  of  mother  and  other  persons :  263. 
Selection  of  profession  or  career  of  child  and  cessation  of 

this  right:  264,  265. 
Parents  cannot  exercise  rights  over  abandoned :  266. 
Compensation  to  which  person  supporting  abandoned  chil- 
dren entitled:  268. 
Exclude  other  heirs  except  natural  children :  1045. 
Legitimated: 

Children  legitimated  by  marriage  are  legitimate :  236. 

When  marriage  legitimates  ipso  jtire  children  born  therein  and 

conceived  before :  237. 
Marriage  legitimates  also  those  recognized  as  natural :  238. 
Otherwise  marriage  does  not  produce  ipso  jure  legitimation,  239. 
Notice  of  instrument  of  legitimation  must  be  given  legitimated 

child:  240. 
Acceptance  or  repudiation  of  legitimation:  241,  242. 
Acceptance  or  repudiation  must  be  declared  in  public  instru- 
ment: 243. 


607 

Acceptance,  when  supposed:   243. 
Legitimation  benefits  legitimate  descendants  of:  244. 
Are  equal  in  all  to  other  legitimate :  245. 
Designation  of  legitimate  children  includes :  246. 
Legitimation  of  child  born  after  marriage,  by  whom  susceptible 
of  impugnation :  247. 
Natural:  what  are:  52,  art.  7  of  law  57  of  1887,  p.  545. 
Register  of  acknoivledgment  of: 

Proceedings  when  father  acknowledges,  in  act  of  birth,  368. 

in  other  act:  369. 
by  virtue  of  suit,  370. 
Posthumous: 

Widow  believing  herself  pregnant  may  announce  it  to  persons 

interested:  232. 
Time  within  which  announcement  to  be  made :  232. 
Rights  of  persons  interested :  232. 

Right  of  mother  to  allowance  for  subsistence  and  expenses :  233. 
Procreated  in  marriage  declared  null  are  legitimate :  149. 

Circuits  : 

Notarial  and  registration :  2548,  2638. 

Civil  Code  : 

In  force  in  Republic :  law  57  of  April  15,  1887,  art.  1,  pp.  11,  543. 

What  it  comprises :   1,2. 

What  property  subject  to  provisions  of:  20. 

When  to  go  in  to  effect :  2683. 

Laws  and  provisions  repealed  by :  2683. 

Civil  Status  : 

What  is  understood  by  and  how  proved:  346,  347,  art.  22  of  law 

57  of  1887,  p.  548. 
Register  of :  See  Register  of  Civil  Status. 

Codes : 

In  force  in  Republic:  law  57  of  April  15,  1887,  art.  1,  p.  11,  543. 
Order  in  which  to  be  observed :  10. 
How  to  be  cited :  2684. 

Collaterals  : 

What  are :  44. 

Collation  : 

Of  property  for  computation  in  hereditary  quarters :   1 243. 

Colombians: 

Residing  in  foreign  country :  laws  affecting :  19. 

Commercial  Code  : 

In  force:  law  57  of  April  15,  1887,  art.  1,  pp.  11,  543. 

Commodatum  :  See  Loan  for  Use. 


6o8 


Community  : 

Is  a  kind  of  quasi  contract :  2322. 

Right  of  co-owners  in  common  singular  and  universal  thing:  2323, 
2324. 

Debts  contracted  on  account  of :  2325. 

Debits  to:  2326. 

Contribution  for  works  and  repairs  to  common  thing  and  division  of 
fruits:  2327,  2328. 

Termination  of :  2340. 

Quota  of  insolvent  a  charge  on  others,  in  prestations  due  each  other : 
2329. 

Rights  of  those  possessing  in  common  land  suitable  for  cultivation : 
2330. 

Rights  of  those  possessing  in  common  land  suitable  for  cattle  graz- 
ing: 2331. 

Rights  of  those  possessing  in  common  wooded  land :  2332. 

Case  in  which  certain  lands  may  be  declared  subject  to  rules  of :  2333. 

Division  or  sale  of  common  thing :  2334. 

When  division  to  be  preferred  to  sale :  2334. 

Rules  for  division:  2335-2338.     Art  35  of  law  57  of  1887,  P-  55 J- 
See  also  arts.  37  ci  seq.,  law  30  of  1888,  p.  575  et  scq. 

Commutative  Contract  : 
What  is:  1498. 

Compensation  : 

What  is:  17 14. 

When  it  takes  place :  1715,1716. 

Between  agent  and  creditor  of  principal  or  third  person :  1 7 1 7. 
When  debtor  may  or  may  not  oppose  in  to  assignee :  1718. 
Even  when  not  opposed  right  to  debt  which  can  be  compensated  re- 
tained: 1 7 19. 
Does  not  take  place  to  prejudice  of  third  parties :  1 720. 
Demands  to  which  it  cannot  be  opposed :  1 72 1 . 
Rules  when  number  of  debts  subject  to :  1722. 
Of  debts  not  payable  in  same  place :  1723. 

Competency,  Benefit  of  : 

See  Benefit  of  Competency. 

Compromise  :  See  Transaction. 

Conception  :  , 

Time  of ,  how  deduced :  92. 
Rights  suspended  until  birth :  94. 

Concubinage  :  .  v 

.  Of  married  man,  cause  for  divorce :  1 54. 

•  t 
Conditions  : 

See  Obligations,  Conditional. 

Condonation  : 

See  Remission. 


609 

Confession  : 

Is  one  of  the  proofs  of  obligations :  1 757. 

Weight  of:  1769. 

Value  of  that  of  a  spouse  as  to  ownership  of  certain  things :   1 795. 

Value  of  that  of  husband,  father,  or  guardian :  2505. 

Confessor  : 

Of  deceased  person:  cannot  receive  legacy,  etc. :  1022. 

Confiscation  of  Property  : 

Cannot  be  imposed  as  a  penalty:  art.  34  of  Const.,  p.  15. 

Confusion  : 

When  it  takes  place :  1724. 

Which  extinguishes  principal  obligation  extinguishes  surety,  but 

not  vice  versa:  1725. 
Cannot  be  partial :  1726. 
Between  one  of  a  number  of  solidary  creditors  or  debtors  and  the 

creditor  or  the  debtor :  effects :  1727. 
Does  not  take  place  between  inheritance  and  debts  and  credits  of 

beneficiary  heir :  1728. 
When  a  servitude  extinguished  by :  942. 

Conjugal  Partnership  : 
Assets  and  charges  of: 

Of  what  assets  consist :  1 78 1 . 

Whether  increased  by  acquisitions  under  title  of  donations,  in- 
heritance, or  legacy :  1782. 

Property  which  does  not  form  part  of  assets :  1 783. 

Ownership  of  land  adjoining  estate  belonging  to  one  spouse 
acquired  during  marriage :  1 784. 

Ownership  of  things  held  by  one  spouse  pro  indiviso  and  ac- 
quired during  marriage :  1785. 

Mines  denounced  to  be  added  to  assets :  1 786. 

Treasure;  ownership  of:  1787. 

Acquisitions  of  things  under  a  gratuitous  title :  1 788. 

When  an  immovable  understood  to  be  subrogated  for  other 
of  spouse:  1789. 

Provisions  governing  subrogation  or  exchange  of    different 
values:  1790. 

Subrogation  made  in  property  of  wife  requires  judicial  ap- 
proval: 1 79 1. 

When  thing  acquired  under  onerous  title  during  partnership, 
does  not  belong  to  it :  1 792 . 

Property  considered  as  acquired  during  partnership :  1 793. 

Remuneratory  donations  belong  to,  when :  1 794. 

What  in  possession  of  one  spouse  presumed  as  belonging  to: 
without  prejudice  to  proof  to  contrary :  1 795. 

Payments  for  which  partnership  bound :  1 796. 

If  thing  belonging  to  one  spouse  sold,  partnership  owes  its 
price  to  vendor :  1 797. 

When  spouse  making  donation  owes  partnership  price  of :  1 798. 

Right  of  assign  to  thing  belonging  to  partnership,  assigned  him 
mortis  causa:  1 799. 


6io 

When  expenditure  for  common  descendant  chargeable  to  part- 
nership: 1800. 

Expenditures  for  acquisition  or  collection  of  property,  etc., 
of  spouses  presumed  as  incurred  by  community :  1 801 . 

Expenditures  to  be  reimbursed  community:   1801,  1802,  1803, 
1804. 
Ordinary  administration  of: 

Husband  administers  property  of:   1805. 

Liability  as  to  third  persons:  1805,  1806. 

When  creditors  may  proceed  against  property  of  wife :  1806. 

Debts  contracted  by  wife  with  power  or  authority  of  husband 
and  contracts  celebrated  by  both  jointly :  1 807. 

Wife,  during  marriage,  has  alone  no  right  in  community  prop- 
erty: 1808. 

Though  wife  renounce  acquets  and  gains,  cannot  collect  fruits 
of  her  own  property :  1 809. 

Requisites  for  alienation  or  mortgage  of  realty  of  wife  and 
causes  j  ustif y ing :  1 8 1  o . 

For  other  property,  consent  of  wife  or  judge  sufficient :  1 8 1 1 . 

Rights  of  wife  and  heirs  in  case  of  illegal  alienation,  etc. :  181 2. 

Time  for  which  husband  may  lease  realty  of  wife :  1 8 1 3. 
Extraordinary  administration  of: 

If  wife  appointed  curatrix  of  husband  or  his  property,  she  has 
the  administration  of  community  property :  18 14. 

Powers  of  administrating  wife :  1 8 1 5 . 

When  acts  of  administrating  wife  binding  on  partnership :  1 8 1 6. 

Lease  of  property  of  husband  by  administrating  wife :  1 8 1 7. 

Wife  not  desiring  to  administer,  may  demand  separation  of 
property:  1818. 

Restitution  to  husband  of  powers  of  administration :  1 8 1 9. 
Dissolution  of: 

Cases  in  which,  dissolved  or  terminated :  99,  1820. 

After,  inventory  and  appraisal  of  property  to  be  made :  1 82 1 . 

Conjugal  Portion  : 
Defined:  1230. 

When  divorced  spouse  entitled  to :  1 2 3 1 . 
When  right  to  shall  be  understood  to  exist :  1232. 
Spouse  falling  into  property  does  not  thereby  acquire  right  to :  1 233. 
To  what  portion  surviving  spouse  with  property  entitled :"  1234. 
Surviving  spouse  may  retain  what  he  or  she  possesses,  renouncing, 

or  vice  versa:  1235. 
Quota  which  constitutes :  1 236. 
Imputation  of  surplus  over,  of  what  spouse  receives  as  donation, 

etc.:  1237. 
Responsibility  inherent  to :  1 238. 

Conjunction  : 

Simple  and  double:  what  is  understood  by,  in  collateral  relation- 
ship: 1049. 

Consanguinity  : 

Defined:  35.  .        %  , 

Legitimate  or  illegitimate :  36. 


6n 

Degrees  of,  how  reckoned :  37. 

Legitimate,  denned :  38. 

Illegitimate:  denned:  39. 

Lines  and  degrees:  41-46. 

In  regard  to  incestuous  children ;  59. 

Consensual  Contract  : 
What  is:  1500. 

Consignee:  Consignor: 
Denned:  2070. 

Consignment. 

Denned:  1657. 

Payment  by :  See  Payment. 

Constitution  : 

Section  of,  embodied  in  Civil  Code,  pp.  12-17. 

Constitutional  Sanction  : 
What  is:  7.  _J 

Constructions  : 

Rules  governing,  made  on  land  of  another  with  one's  own  materials, 

and  vice  versa:  738,  739. 
On  party  walls:  913,  914. 

Consul  ;  Consular  Agent  : 

Value  of  record  of  civil  status  made  by :  382. 

Foreign :  may  propose  to  court  curators  for  property  of  succession 

of  citizens  of  their  countries :  570,  57 1 . 
Testament  executed  before  Consuls  of  Republic,  valid  with  certain 

formalities:  1085,  1086. 

Contract : 

Defined:  1495. 
Accessory;  defined:  1499. 
Aleatory;  defined:  1498. 
Bilateral;  defined:  1496. 
Commutative;  defined:  1498. 
Consensual;  defined:  1500. 
Gratuitous;  defined:  1497. 
Onerous;  defined:  1497. 
Principal;  defined:  1499. 
Real;  defined:  1500. 
Solemn;  defined:  1500. 
Unilateral;  defined:  1496. 

Contracts  : 

Executed  in  foreign  country ;  requisites  for  validity  in  Republic :  20. 
Things  essential,  natural  and  accidental  distinguished  in :  1 50 1 . 
Rules  for  interpretation  of :  533. 
See  Obligations. 


6l2 

For  material  works: 

When  considered  a  sale  and  when  a  lease :  2053. 
Rules  governing :  2054-2062. 

Copyright  Law  Embodied  in  Civil  Code,  pp.  584  ct  seq. 

Convention  : 

Defined:  1495. 

Corporations  : 

What,  are  juristic  persons :  633. 

Not  established  by  law,  are  not  juristic  persons :  634. 

Public,  not  included  in  provisions  governing  juristic  persons:  635. 

By-laws  of,  and  their  approval :  6$6.t 

Binding  force  of :  64 1 . 

When  acts  of,  binding  upon  individual  members :  637. 

What  constitutes  quorum  of  members  of :  638. 

By  whom  represented :  639. 

When  acts  of  representation  binding  upon :  640. 

Property  which  may  be  acquired  by :  643. 

Disposition  of  realty  acquired  by :  643. 

Dissolution  of :  647. 

Disposition  of  property  of  dissolved :  649. 

Domicile  of :  86. 

Usufructs  in  favor  of :  duration  of:  829. 

Corporeal  Things  :  See  Things  Corporeal. 

Counter  Instruments,  Public  : 

Made  to  alter  agreement  contained  in  public  instrument,  not  effec- 
tive against  third   persons  without  certain  formalities:  1766. 

Creditor  : 

When  considered  as  legatee :  1 1 20. 

Enjoying  benefit  of  separation ;  rescissory  action  of :  144 1 . 

Credits  : 

Legacy  of:  1185. 

Preference  of :  See  PREFERENCE  OP  Credits. 

Cruelty  : 

A  cause  for  divorce :  1 54. 

Curators  : 

Appointment  of  to  children  of  widower  desiring  to  remarry :  1 69- 171. 

wife  to  request  separation  of  property :  199-208. 
Who  are  so  called :  428. 
Ad  bona:  561-580. 

To  whom  curators  cannot  be  given :  438-440. 
Special  for  donation,  inheritance  or  legacy  left  ward :  442. 
Administration  of,  with  regard  to  property ;  representation  for  the 
ward  and  administration  of  his  property :  480,  48 1 . 

If  the  guardian  to  submit  to  advisor  left  him  by  testament :  482. 


6i3 

Alienation  or  encumbrance  of  real  and  other  property  of  ward : 

483- 

How  sale  of  to  be  effected :  484. 

When  judicial  decree  necessary  for  sale,  etc.,  of  ward's  prop- 
erty: 484. 

Division  of  property  of  ward :  485. 

Repudiation  or  acceptance  of  inheritance  deferred  to  ward: 
486. 

Requisites  for  acceptance  or  repudiation  of  legacies  or  dona- 
tions: 487. 

Judicial  decree  necessary  to  effect  compromises,  etc. :  489. 

for  partition  of  inheritance :  488. 

Money  left  or  donated  ward  for  purchase  of  real  "estate :  490. 

Donation  of  property  belonging  to  ward :  49 1 . 

Gratuitous  remission  of  right  of  ward :  492. 

Payment  of  debts  to  curator  are  a  discharge :  494. 

Investment  of  funds  of  ward :  495. 

Lease  of  estates  of  ward :  496. 

Collection  of  debts  in  favor  of  ward :  497. 

Interruption  of  prescriptions  against  ward :  498. 

Advances  which,  may  recover  and  requisites :  499. 

Statement  to  be  embodied  in  acts  executed  by :  500. 

Acts  for  which  authority  of  other  curators  necessary  or  of  court, 
etc. :  501,  502. 

Allowance  of  expenses  during  administration :  503. 

Accounts  to  be  kept  and  submitted :  504. 

Account  which  Judge  may  demand  of,  in  interests  of  ward: 

505. 

Property  to  be  turned  over  upon  expiration  of  guardianship: 
506. 

Account  when  administration  divided :  507. 

Liability  of,  and  when  subsidiary:  508. 

Liability,  solidary,  when  administration  divided  among  cura- 
tors by  private  agreement :  510. 

Account  of  curator  to  be  examined  by  whom :  511. 

Damages  from  fraud  or  fault :  512. 

Interest  on  balances :  513. 

Prescription  of  actions  of  ward  against :  514. 

Exercise  of  charge,  without  being :  5 1 5. 

Administration  of  property  of  ward  in  case  of  necessity :  5 1 6. 
Associate: 

Who  are :  434. 

To  be  appointed  when  affairs  of  ward  complicated :  441. 

Their  administration  and  independence:  581,582. 

Subsidiary  liability  of  certain  persons  for  their  acts :  582. 
Compensation  of: 

What  is,  and  how  distributed :  614,  615. 

Disbursements  by,  in  discharge  of  functions :  616. 

Computation  of  allowance  made  to  testamentary  curator:  617. 
Effect  of  excuses  and  incapacities  preexisting  as  to:  618, 
619. 

Careless  or  fraudulent  administration  of  curator:  621. 

When  property  of  ward  insufficient  except  for  bare  support :  622. 


614 

When  tenth  may  be  collected  and  how  determined :  623-625. 

Of  certain  special  curators:  626. 
Removal  of: 

Causes  for:  627. 

Habitual  careless,  when  presumed:  628. 

From  one  curatorship,  cause  for  removal  from  others :  629. 

Who  may  request :  630. 

Appointment  of  provisional  curator  pending  proceedings  for: 
631. 

Criminal  and  civil  liability  of  curator  removed:  632. 
Special:  435,  583-584. 

CURATORSHIPS  S 

Qualification  as  to  age  puts  an  end  to :  343. 

What  are:  428. 

Exceptions  and  modification  of  provisions  governing:  429. 

Extension  of :  431. 

Who  subject  to:  431,432. 

Two  or  more  persons  may  be  placed  under  one;  and  one  may  be 

discharged  by  two  or  more  persons :  437. 
May  be  testamentary,  legal  or  dative :  443. 
Incapacities  for:  See  Incapacities. 
Excuses  from  exercising:  See  Excuses. 
Measures  prior  to  exercise  of :  confirmation  of  charge :  463. 
Requisites  for  confirmation :  464. 
Curators  must  furnish  surety :  when :  465. 
Mortgage  may  be  given  instead  of  surety :  466. 
Acts  of  curator  prior  to  confirmation :  467. 
Inventory  to  be  made  by  curator :  468. 

Testator  cannot  relieve  curator  from  making  inventory :  469. 
When  formal  inventory  may  be  omitted :  470. 
Form  of  formal  inventory :  47 1 . 
Rules  governing  inventories :  472-474. 

Assertion  in  inventory  not  sufficient  proof  as  to  ownership :  475. 
Errors  committed  in  inventory :  476. 
Liability  of  curator  regarding  things  comprised  in  inventory  not 

delivered  to  him :  477. 
Obscure  passages  in  inventory :  478. 
Inventory  of  curator  succeeding  another :  479. 
Dative: 

When  it  takes  place :  460. 

temporarily:  461. 

In  selection  of  dative  curator,  relatives  of  ward  to  be  heard :  462. 

Several  persons  may  be  appointed  to  one :  462. 
Of  the  deaf  and  dumb: 

May  be  testamentary,  legal  or  dative :  557. 

Provisions   applicable  to:   558,  art.    23   of   law   57   of    1887, 
p.  548.  / 

Application  of  fruits  and  capitals  of :  559. 

When  it  ceases :  560. 
Of  the  insane: 

Special  rules  relating  to :  545-556. 

Who  is  subject  to  and  kinds :  545. 


6i5 

When  father  may  care  for  insane  child :  546. 

must  demand  interdiction  of  insane  child :  546. 
tutor  may  exercise  curatorship  of :  547. 
Who  may  institute  proceedings  for  interdiction :  548. 
Investigation  by  Court :  549. 
Provisions  which  apply  to :  549. 
Persons  to  whom,  must  be  deferred :  550. 
Curatrix  of  insane  husband  has -administration  of  conjugal 

partnership  and  guardianship  of  minor  children :  551. 
Appointment  and  functions  of  two  or  more  curators :  552. 
Acts  of  insane  person  before  interdiction  and  after:  553,  554. 
Personal  liberty  of :  554. 
Destination  of  fruits  and  capitals  of:  555. 
Rehabilitation  of :  556. 
Legal:  When  it  takes  place :  456. 
Who  are  called  thereto :  457. 
Of  natural  child :  458. 
If  legal  guardian  cease,  another  to  be  appointed,  if,  to  continue : 

459-  .    . 

Oj  minors: 

Who  are  subject  to :  524. 

not  subject  to:  525. 

Who  to  petition  court  for  appointment  of  curator :  526. 

Administrative  powers  of  minor:  528. 

Representative  character  of  curator :  529. 

Ward  has  right  to  petition  for  intervention   of   defender  of 
minors:  530. 
Oj  a  posthumous  child: 

Who  administers  property  of  posthumous  child :  573. 

Tutor  given  posthumous  child  by  father;  presumed  to  be  called 
to  curatorship  of  eventual  rights  of  same :  574. 

Other  provisions  applicable  hereto :  575,  579. 
Of  prodigals: 

Who  subject  to :  531. 

By  whom  interdiction  may  be  requested :  532,  533. 

How  prodigality  must  be  proved :  534. 

Provisional  interdiction :  535. 

Registration  and  publication  of  decree  of  interdiction :  536. 

To  whom  to  be  deferred :  537. 

Curator  of  husband  administers  conjugal  partnership  and  tu- 
torship or  curatorship  of  minor  children :  538. 

Wife  cannot  be  curatrix  of  spendthrift  husband :  right  in  such 
case:  539. 

Parents  exercising  curatorship  of  son  may  appoint  successor 
in  testament :  540. 

Right  of  spendthrift  to  appeal  to  court  in  certain  cases :  541 . 

Liberty  of  spendthrift  as  to  his  person :  542. 

Rehabilitation  of  spendthrift  and  formalities  for:  543,  544. 
Oj  the  property  of  absentees: 

Circumstances  requiring :  56 1 . 

Who  may  request  establishment  of:  562. 

Who  may  be  appointed  to :  563. 

Intervention  of  defender  of  absentees :  564. 


6i6 

Proceedings  if  absentee  has  left  wife  not  divorced :  565. 

Husband  may  in  certain  cases  be  curator  of  absent  wife :  566. 

Subordination  of  attorney-in-fact  to  curator:  567. 

First  duty  of  curator :  568. 

Restrictions  in  administration :  575,  577. 

Appearance  in  court  of  curator :  578. 

Expiration  of :  579. 
Testamentary: 

To  whom  legitimate  father  may  appoint :  444-446. 

When  legitimate  father  has  no  right  to  appoint :  447. 

When  mother  may  appoint:  448. 

When  natural  father  may  appoint :  449. 

Conditions  under  which  any  person  may  appoint  testamentary 
curator  and  limitations  of  such :  450. 

Two  or  more  testamentary  curators  may  be  appointed  and  ad- 
ministration divided  between  them :  45 1 . 

Over  persons  and  property  of  a  number  of  wards :  452. 

If  a  number  of  curators,  Judge  may  divide  functions,  etc. :  453. 

Curators  may  be  appointed  to  succeed  or  substitute  others :  454. 

Susceptible  of  conditions :  455. 
Of  a  vacant  inheritance: 

Is  dative:  569. 

Who  may  propose  curator  if  there  are  foreign  heirs :  570. 

Approval   of   curator  recommended   by   respective   consular 
agent:  571. 

When  hereditary  property  to  be  sold,  etc. :  572. 

Provisions  applicable :  575,579. 

Custom  : 

Has  no  force  against  the  law :  8. 

Damages  : 

Emergent:  defined:  16 14. 

Damages  for  default  in  performance  of  obligations:  See  Obliga- 
tions, Effects  of. 
Common  liability  for  offenses  and  faults :  2341-2360. 

Day: 

What  is  understood  by  certain,  uncertain,  determined  and  undeter- 
mined: 1 139. 

Deaf  Mutes  : 

Special  rules  relating  to  the  curatorship  of :  557~56o. 
May  contract  marriage,  when:  140,  No.  3. 
Cannot  be  witnesses  to  testaments:  1068. 

Death  : 

Terminates  existence  of  persons :  94. 
Simultaneous  of  two  persons :  proceedings  in  case  of :  94. 
Presumption  of,  by  disappearance :  96  et  seq. 
Dissolves  marriage :  152. 

Deaths,  Register  of  ; 

Persons  obliged  to  give  notice  of  deaths :  356-361. 


617 

Certificate  to  be  issued  and  presented  before  interment  permitted : 

362. 
Penalty  for  interment  without :  363. 

See  Register  of  Civil  Status. 

Debtor : 

In  default :  cases  when  debtor  in  default  and  rights  of  creditor:  1608, 

1716. 
Absconding :  is  considered  absentee  and  curator  for  property  of  may 
be  appointed:  562. 

Debts  : 

Remission  of  by  testament:  1187,  1188. 

Confessed  in  a  testament :  1 1 9 1 . 

Hereditary  and  testamentary,  payment  of :  See  Payment. 

Preferred :  See  Preference  of  Credits. 

Declarations  of  Will  : 
See  Acts. 

Default  : 

In  contracts  and  what  may  be  demanded  in  consequence  of :  1 608- 
1610. 

Defender  of  Absentees  : 

Shall  take  part  in  appointment  of  curator  to  property  of  absentee : 
564. 

Defender  of  Minors  : 

To  be  heard  in  granting  qualification  as  to  age :  342. 
When,  may  demand  production  of  accounts  of  tutor  or  curator  of 
administration  and  of  balances :  505. 

Defer,  to  : 

Defined:  10 13. 

Definitions  : 

Of  words  of  frequent  use  in  the  laws :  33-70 ;  arts.  6  to  8  of  law  57 

of  1887,  pp.  544-545. 

Degrees  : 

Computation  of,  in  relationship  by  consanguinity :  37. 
In  legitimate  or  illegitimate  affinity :  49. 

Delation  : 

What  is:  1013. 

Delegate : 

Who  called  in  novation  of  contract  by  substitution  of  debtor :  1 690. 

Delegation  : 

Of  substitution  in  mandates :  2 1 6 1 . 

Delivery  :  See  Tradition. 


6i8 


Demarcation  : 

Lines  of,  between  riparian  estates:  serve  as  a  basis  for  adjudication 
of  alluvion:  720,  721. 
And  in  certain  cases  for  that  of  islands  formed  in  rivers :  727. 

Deposit  : 

In  general: 

What  is  called :  2236. 

How  perfected :  2237. 

Delivery  of  the  thing :  2238. 

Kinds  of  deposits :  2239. 
Necessary: 

Defined:  2260. 

Proof  of:  2261. 

Of  which  adult  not  having  the  free  administration  of  his  prop- 
erty takes  charge  binds  him  even  without  authority :  2262. 

Liability  of  depositary :  2263. 

General  rules :  2264. 
In  taverns,  etc. : 

Deposit  of  effects  delivered  to  innkeeper :  2265. 

Liability  of  innkeeper  for  such :  2266,2267. 

Proof  required  of  guest  charging  theft,  etc. :  2268. 

Obligation  of  traveller  as  to  valuable  effects :  2269. 

Cases  in  which  no  liability  on  part  of  innkeeper :  2  2  70,  2  2  7 1 . 

Restaurants,  cafes,  billiard  rooms  and  bathing  establishments : 
2272. 
Properly  so-called: 

What  is  understood  by :  2240. 

When  error  invalidates :  2241. 

Cases  in  which  depositary  to  be  believed :  2242. 

Actions  of  depositor  and  depositary  in  case  of  disability  of 
either:  2243. 

Is  gratuitous :  2244. 

Otherwise  hire  of  service :  2244. 

Does  not  give  power  to  use  thing  deposited;  exceptions:  2245. 

Of  money:  2246. 

Fault  for  which  depositary  liable :  2247. 

Respect  of  seals  and  locks  of  package  containing  deposit :  2248. 

Proceeding  if  seals  broken :  2249. 

Depositary  must  not  violate  secret  of  confidential  deposit :  2250. 

Restitution  of :  2251. 

Duration  of:  2252. 

Thing  which  depositary  must  return:  2253. 

Liability  of  depositary  for  force  majeure:  2254. 

Action  of  depositor  when  heirs  of  depositary  sell  thing  depos- 
ited: 2255. 

Costs  of  transportation  for  restitution :  2256. 

Rules  applicable  to  deposits :  2257. 

Cases  in  which  depositary  may  retain  thing  deposited :  2258. 

Indemnity  to  be  made  by  depositor:  2259. 

Devise  : 

See  Assignments,  Testamentary. 


619 

"DiarioOficial": 

Promulgation  of  laws  by  insertion  in :  12. 

Diplomatic  Agent: 

Value  of  record  of  civil  status  made  by :  382. 

Directors  : 

Of  colleges  and  schools :  prescription  of  fees  of:  2542. 

Disappearance  :  Presumption  of  death  by :  96  el  seq. 
To  be  considered  a  mere  absence :  96. 
See  Absentee. 

Discovery  : 

Is  a  means  of  acquiring  ownership  of  things  in  certain  cases :  699. 

Discussion,  Benefit  of  : 
See  Security. 

Disease  : 

Persons  suffering  from  chronic,  may  be  excused  from  guardianship : 
602. 

Disinherison  : 

What  is  understood  by  and  causes  for  that  of  ascendants  and  de- 
scendants: 1265,  1266. 
When  causes  of  shall  not  be  valid :  1 267. 
Effects  of:  1268. 
May  be  revoked :   1 269. 

Dispossession  : 

Right  of  person  who  has  been  violently  dispossessed  to  restitution : 
984,  985. 

Dissolution  of  Marriage  : 
By  death:  152. 
Divorce  not  a  cause  for :  153. 

Divorce : 

Does  not  dissolve  marriage :  153. 

Insanity  and  contagious  disease,  etc.,  not  ground  for  divorce:  155. 

Effects  of:   155. 
Suit  for,  may  be  brought  only  by  innocent  party :  1 56. 

Parties  to:  156. 
Measures  to  be  adopted  during  pendency  .of  suit :   157. 
vSeparation  of  spouses  pending  suit :   157,  No.  1 . 
Assignment  of  domicile  to  wife  pending  suit :   157,  No.  2. 
Alimony  to  wife  pending  suit :   157,  No.  4. 
Custody  of  children :   157,  No.  3. 

Administration  of  common  property  pending  suit :   1 58. 
Reconciliation  extinguishes  action  for :   1 59. 
Effects  of:   160-168. 
Custody  of  children  after  divorce  granted :  160,  161 . 


620 


Property  of  wife  restored,  when :  162. 

Disposition  of  property  of  wife  if  guilty  of  adultery :  163. 

Donations  made  to  guilty  spouse  may  be  revoked :  164. 

Guilty  husband  must  contribute  to  support  of  wife :   166. 

Reconciliation  returns  things  to  condition  prior  to  divorce:   167. 

Effects  of  with  regard  to  legitimate  children :   168. 

Announcement  of  woman  divorced  who  believes  herself  pregnant : 

225-227. 
If  woman  avoids  measures  adopted  by  husband,  latter  not  obliged 

to  recognize  birth  and  its  circumstances :  228. 
If  husband  does  not  use  his  rights,  must  accept  statement  of  wife 

regarding  birth :  229. 
Husband  may  always  charge  illegitimacy  within  legal  period :  230. 
To  whom  announcement  to  be  made  when  husband  absent :  231. 

Domicile  : 

In  so  far  as  it  depends  on  residence: 

What  it  consists  of  and  what  it  determines :  76-78. 

Acts  which  cause  or  do  not  cause  a  presumption  of  domicile : 

79,  80. 
Not  changed  by  mere  residence  elsewhere :  8 1 . 
Presumption  of,  by  declaration:  82. 
When  a  person  shall  be  considered  to  have,  in  several  places :  83 

mere  residence  serves  instead  of  domicile :  84. 
Civil,  may  be  established  in  contract :  85. 
Of  corporations  and  associations,  etc. :  86. 
In  so  jar  as  it  depends  on  the  condition  or  civil  status  of  a  person: 

Of  a  married  woman,  of  the  son,  of  the  ward,  of  the  employee : 
97-90. 

Dominant  Tenement: 
See  Servitudes. 

Donations  : 
Inter  vivos: 

What  is  understood  by :  1443. 
Who  able  to  make  1444,  1445. 

receive:   1446. 
Cannot  be  made  to  person  not  existing  at  moment  of:  1447. 
Incapacity  to  receive :  1448. 
When  made  to  curator  of  donee  null :   1449. 
Not  presumed:  1450. 
Person  repudiating  inheritance,  etc.,  for  benefit  third  person, 

does  not  make:   1451. 
Creditors  may  substitute  themselves  for  person  repudiating: 

i45i- 
None  in  commodatum  and  mutuum  without  interest :  1452. 
Remission  of  right  to  interest  on  capital  is :  1452. 
Gratuitous  services  are  not :  1453. 
Surety,  mortgagor  or  pledgor,  in  favor  third  person  does  not 

make:  1454. 
Failing  to  interrupt  prescription  does  not  constitute :  1456. 
Of  real  property ;  requisites  necessary  in :  1457. 


621 


Insinuation:  1458,  1459. 

Conditional  or  limited,  when  demandable :  1460. 

With  an  onerous  cause :  requisites  for :  1 46 1 . 

In  which  pecuniary  charge  imposed  on  donee :   1462. 

Made  by  one  spouse  to  other,  does  not  require  insinuation :  1463. 

Under  a  universal  title ;  requisites  for :  1464. 

Reservation  of  donee  of  all  his  property  and  rights :  1465. 

Under  universal  title,  do  not  comprise  future  property :  1466. 

Intrust:  insinuation  of :  1467. 

Who  may  accept  and  rules  extensive  to  acceptance  or  repudia- 
tion: 1468. 

When  freely  revocable :  1469. 

With  a  charge  of  restitution,  when  irrevocable:  1470. 

Accepted  by  trustee  and  notified  to  donor  may  be  modified  or 
revoked:  147 1. 

Right  of  transmission  does  not  extend  to :  1472. 

General  rules  extended  to :  1473. 

Persons  making,  enjoy  benefit  of  competency :  1474. 

Obligations  of  donee  under  universal  title :  1475. 

Of  all  property,  etc.,  does  not  prejudice  creditors  of  donor :  1476. 

Charge  on  donee  under  singular  title :  1477. 

Liability  of  donee  for  charges  imposed  and  debts  of  donor  :  1478. 

Donee  of  gratuitous,  has  no  action  of  warranty :  1479. 
onerous  has  action  of  warranty  when :  1480. 

When  revoked  by  birth  of  legitimate  children  to  donors:  148 1. 

Cases  in  which  subject  to  rescission :  1482. 

Action  of  donor  against  conditional  donee :  1483,  1484. 

Revocation  of  for  ingratitude :  1485. 
How  donee  considered  if :  i486. 
Term  of  action  for:  1487. 
Who  may  bring  action  for  donor :  1488. 

Cases  in  which  resolution,  rescission  and  revocation  give  right 
against  third  persons :  1489. 
Remuneratory : 

What  is  understood  by :  1490. 

When  not  subject  to  rescission  or  revocation :  149 1 . 

Subject  to  insinuation :  1 49 1 . 

Right  of  donee  to  demand  in  certain  cases  payment  for  ser- 
vices: 1492. 

Subject  to  general  rules :  1493. 
By  reason  of  marriage: 

Subsist,  notwithstanding  annulment  of  marriage :  1 50. 

What  is  understood  by :  1842. 

Rules  regarding  promises  of  a  spouse  or  third  person  before 
celebration  of  marriage :  1 843. 

Limit  of  donations :  1 844. 

Subject  to  conditions  and  terms,  etc.,  whatever  called :  1845. 

Revocability  of :  1 846. 

What  resolutory  condition  understood  in  donations  inter  vivos 
or  testamentary  assignments :  1 847. 

Cases  in  which  revocable  by  dissolution  of  marriage  before  con- 
summation: 1848. 
Revocable: 

What  is  understood  by :  1 1 94. 


622 

Is  a  donation  mortis  causa:  1194. 

What  are  valid  as  such :  1 195. 

Not  valid:  1196. 

Rules  governing  making  of:  1197;  art.  31  of  law  57  of  1887, 

P-  55o. 
Effect  of  tradition  of  things  donated :  1 1 98. 
Under  a  singular  title  considered  anticipated  legacies :  1 199. 
Of  all  property  or  of  a  quota  thereof :  1 201 . 
How  they  lapse :  1 202 . 

confirmed:  1203. 
Revocation  may  be  express  or  implied :  1 204. 
Exceptions  and  modifications  regarding  forced  assigns:  1205. 

Drain  : 

Cannot  be  directed  over  neighboring  tenement  not  subject  to  servi- 
tude of :  891. 


Easement  ;  See  Servitudes. 

Emancipation  : 

What  is  understood  by :  3 12. 

Its  kinds:  312. 

Requisites  for  voluntary :  3 1 3 . 

How  legal,  effected  and  when  judicial,  takes  place :  314,  315. 

Property  left  to  child  under  condition  of,  or  that  father  shall  not 

not  administer :  316. 
Irrevocability  of :  317. 

Eminent  Domain  : 

See  Expropriation. 

Employees  : 

Domicile  of:  89. 

Prescription  of  wages  of :  2543. 

Public- 
Minor,  considered  of  age  as  regards  their  positions :  290. 
May  be  excused  from  guardianship :  602. 

Portion  of  salary  of  not  subject  to  attachment:  1677. 

Prohibited  to  purchase  public  or  private  property  sold  through 
their  intervention :  1 854. 

Engineers: 

Prescription  of  fees  of :  2542. 

Error : 

In  marriage:  140,  141. 
possession:  768. 

testamentary  assignments :  1 1 1 6- 1 1 1 7 . 
acts  and  declarations  of  will :  1 508- 1 5 1 2 . 

Espousals. 

Effects  before  civil  law :  no. 

Promise  cannot  be  pleaded  to  recover  damages :  1 10. 


623 


Estate : 

What  is  called :  656. 

Eviction  : 

See  Warranty  : 

Exchange :  * 

What  is:  1955. 
How  perfected :   1956. 
What  things  subject  to :  1 957. 
Persons  unable  to :  1957. 
Provisions  applicable  to :  1958. 

Exceptions,  Real  : 
Defined:  2380. 

Excuses  : 

For  tutorship  or  curator  ship : 

Who  may  be  excused :  602,  603. 

Persons  owning  realty  cannot  be  excused  by  reason  of  lack  of 

sureties:  605. 
Persons  having  served  ten  years  or  more,  may  be  excused :  606. 
When  to  be  pleaded :  607-609. 
Causes  occurring  after  appointment  may  be  pleaded  at  any 

time:  610. 
Measures  when  curator  appointed  in  a  foreign  country :  6 1 1 . 

Excusi6n  :  See  Discussion,  Benefit  of  : 

Executors,  Fiduciary  : 
Who  are  called :  1 368. 
Rules  regarding :  1369-1373. 

Executors,  Testamentary  : 
Who  are:  1327. 

Who  to  act  as,  in  absence  of :  1328. 
Who  cannot  be:  1329. 
Rule  regarding  married  woman :  1 330. 
Widow  ceases  being  executrix  on  re-marriage :  1 33 1 . 
Incapacity  occurring  during  executorship,  terminates  it:  1332. 
Term  within  which,  to  assume  duties :  1333. 
Declination  of  appointment:  1334. 

Cannot  take  place  after  acceptance :  1 335. 
Executorship  not  heritable :  1 336. 

cannot  be  delegated :  1337. 
May  appoint  agents :  1 337. 
Liability  of,  if  a  number  of:  1338. 
Division  of  powers  among :  1339. 
Joint  discharge  of  duties :  1 340. 

Obligations  of  as  to  bond  and  inventory  of  property :  1 34 1 . 
»   To  give  notice  of  opening  of  succession :  1 342 . 
Amount  of  property  to  be  set  aside  for  payment  of  debts :  1 343. 
Liability  of,  and  other  persons  for  omission  of  formalities :  1 344 . 


624 

• 

Debts  to  be  paid  by,  with  intervention  of  heirs  present,  etc. :  1345. 
Action  of  creditors  against  heirs,  for  delay  on  part  of :  1346. 
Legacies  to  be  paid  by:  1347* 

for  objects  of  public  charity,  duties  as  to :  1 348. 
Security  which,  may  require  of  certain  persons :  1 349. 
Sale  of  testamentary  property  and  provisions  extensive  to:  1350, 

1351. 
Representation  of,  in  court,  1352. 
Seizin  of  property  conferred  by  testator  to :  1353. 
Bond  when  seized  of  property :  1354. 
Testator  cannot  increase  powers  of :  1 355. 

Nor  relieve  him  of  his  obligations :  1355. 
Faul t  f or  which  liable :  1356,1357. 
Cannot  execute  illegal  disposition  of  testator :  1 358. 
Compensation  of :  1359. 
Term  of  executorship :  1 360,  1 36 1 . 

Extension  of :  1362. 
Term  fixed,  understood  as  without  prejudice  to.  partition :  1 363. 
When  termination  of  executorship  may  be  demanded :  1 364. 
Insufficient  motives  for  extension  of  term :  1365. 
Account  to  be  rendered  by :  1366. 
Balance  appearing  in  favor  or  against :  1367. 

Existence  : 

Of  natural  persons :  beginning  of :  law  protects  life  of  unborn :  90,  91. 
Rule  for  deduction  of  period  of  conception :  92. 
Rights  to  be  deferred  to  one  about  to  be  born :  93. 
Its  end  or  termination :  by  death :  94. 
Rules  to  fix  orders  or  deaths  from  same  cause :  94. 
See  Persons. 

Expropriation  : 

Case  in  which  a  town  may  demand  that  of  waters :  893. 

Expropriation  by  reason  op  public  utility  : 
Rules  governing,  of  thing  leased :  201 8. 

Family  : 

What  is  comprised  in,  as  to  rights  of  use  and  habitation :  875. 

Father : 

See  Parents;  Children,  Legitimate,  Their  duties  and  obli- 
gations. 
See  Paternal  Power. 
Responsible  for  acts  of  children :  2347. 

Fault  : 

Three  degrees  of :  63. 

Fear: 

One  of  the  causes  for  nullity  of  marriage,  and  who  may  plead:  140, 

141. 
When  it  vitiates  consent  in  acts  and  declarations  of  will :  15 13. 
Reverential:  15 13. 


625 

Fideicommissa  :  See  Fiduciary  Property. 

Fiduciary  Executor  : 

See  Executors,  Fiduciary. 

Fiduciary  Property: 

What  is  called :  793,  794. 

Fideicommissum  may  be  constituted  on  what  and  how :  795,  796. 

Same  property  may  be  constituted  in  usufruct  in  favor  of  one  per- 
son and  fidei  commissum  in  favor  of  another:  797. 

Cestui  que  trust  need  not  exist  at  time  of  constitution  of  trust :  798. 
must  exist  at  time  of  restitution :  799. 

When  condition  in  fideicommissum  considered  lapsed :  800. 

Stipulations  which  do  not  constitute  fideicommissum :  801. 

Number  of  trustees  and  cestuis  que  trustent  permissible :  802. 

Substitutes  for  cestuis  que  trustent:  803. 
to  be  recognized :  804. 

Successive  fideicommissa  prohibited :  805. 

When  several  cestuis  que  trustent  appointed  in  first  place :  806. 
trustee  not  expressly  designated :  807. 

If  fruits  to  belong  to  cestui  que  trust  while  condition  pending :  808. 

Right  of  accretion  if  two  or  more  trustees :  809. 

May  be  alienated  inter  vivos  and  transmitted  mortis  causa:  810. 

When  not  transmissible :  810. 

If  two  or  more  trustees,  Judge  may  entrust  administration  to  which : 
811. 

Right  of  trustee  of  part  and  owner  of  other  part :  812. 

Who  to  take  part  in  division  of :  812. 

Trustee  has  rights  and  obligations  of  usufructuary  with  some  modi- 
fications: 813. 

What  surety  required  of  trustee  and  when :  814. 
Expenses  to  be  defrayed  by  trustee :  8 1 5. 
Reimbursement  of :  815. 

Imposition  of  charges  on  property  by  trustee :  8 1 6. 

Trustee  has  free  administration  of  property :  81 7. 
But  responsible  for  deterioration,  when :  8 1 7. 

Unnecessary  improvement  in,  by  trustee :  818. 

WThen  trustee  not  responsible  for  deterioration :  8 19. 

Powers  of  cestui  que  trust  pending  condition :  820. 

( 'cstui  que  trust  dying  before  restitution,  transmits  no  rights :  82 1. 

How  fideicommissa  extinguished :  822. 

Find: 

Means  of  acquiring  ownership :  699. 

Fiscal  Code  : 

In  force:  law  57,  1887,  art.  i,pp.  11,543. 

Fishing: 

Gives  ownership  of  animals  caught :  686-690. 
In  rivers  and  lakes'of  public  use :  690. 

Restrictions  upon :  691,692. 
When  fisher  acquires  animal  and  when  he  cannot  pursue:  693,  694. 


626 


Flocks : 

Legacy  of :  1 1 8 1 . 

Flotsam  and  Jetsam  : 

To  be  returned  to  persons  interested,  when :  710. 
Rules  governing :  711. 

Force : 

Is  a  cause  for  nullity  of  marriage :  140. 

Who  may  plead :  145. 

Possession  acquired  by,  is  vicious :  771-774. 

Testament  in  which  used,  null  in  all  its  parts :  1063. 

When  it  vitiates  consent  in  acts  and  declarations  of  will :  1513,1514. 

Force  Majeure  : 
Defined:  64. 

Foreigners  : 

When  intervention  of  respective  Consuls  necessary  to  appoint  cura- 
tor to  inheritance  corresponding  to :  570,  571 . 

Are  called  to  intestate  successions  in  same  terms  as  citizens :  1053. 

Rights  in  succession  of:  1054. 

Not  domiciled  in  the  Union:  cannot  be  witnesses  to  testaments 
executed  therein :  1068. 

Fortuitous  Event  : 
Defined:  64. 

Foundations  : 

Not  established  by  law  are  not  juristic  persons :  634. 
Government  of :  650. 
Expiration  of :  652. 

Fraud : 

Denned:  63. 

Effects  of  in  acts  and  declarations  of  will,  and  actions  to  which  they 

give  rise:  15 15. 
Not  presumed:  15 16. 

Fruits  : 

Natural:  715,  716. 
Civil:  717,  718. 

Fungibles  : 

Rights  of  usufructuary  of:  848. 
Legacies  of :  1 1 70. 


Furnished  House  : 

Lease  of :  See  Lease. 

Furniture  of  a  House  : 

What  is  comprised  therein :  662. 


627 

. 

Gambling  and  Betting: 

Are  aleatory  contracts :  2282. 

Do  not  produce  an  action,  but  only  an  exception :  2283. 

When  fraud  present  in  betting:  2284. 

Who  may  recover  what  has  been  paid  by  persons  not  having  free 

administration  of  their  property :  2285. 
Action  produced  in  games  of  strength,  etc. :  2286. 
Risk  of  imprudent  sum,  is  waste,  depriving  debtor  of  benefit  of 
cession  of  property :  1676. 

General  Partnership  : 
What  is:  2087. 

See  Partnership. 

Good  Faith. 

What  is:  768. 

Usually  presumed :  769. 

Grandparents  : 

Obligation  of,  in  certain  cases  to  support  and  educate  their  grand- 
children: 260. 
■ 
Gratuitous  Contract  : 
Defined:  1497. 

Ground  Rents  :  See  Rent  Charges. 

Guardianship  :  See  Tutorship,  Curatorship  ;  Tutors,  Curators. 


Habitation:  Right  of: 


vSee  Use  and  Habitation. 

Hedges,  Party  : 
See  Servitudes. 

Heir: 

Defined:  1011. 

An  assign  under  a  universal  title  is  an  heir :  1 1 56. 

Forced:  what  are:  1239,  1240. 

Participation,  exclusion  and  representation  of :  1 24 1 . 
See  Legitimes  and  Betterments. 

Presumptive:  Defined:  100. 

Rights  of  action  of :  1321,1322. 

Rules  applicable  to  restitution  of  fruits  and  allowance  of  improve- 
ments in  petition  of  inheritance :  1323. 

Liability  of  him  who  occupies  an  inheritance,  in  good  or  bad  faith, 
as  to  alienation  and  deterioration :  1324. 

Also  has  action  for  revendication  :  1325. 

Prescription  of  right  of  petition  of  inheritance :   1 326. 

Division  of  hereditary  and  testamentary  debts  among:   141 1  ct  seq. 
See  Payment  of  Hereditary  and  Testamentary  Debts. 

Herd: 

Legacy  of:  1181. 


628 


Hire: 

Of  domestic  servants :  See  Servants. 

Of  immaterial  services :  rules  governing :  2063-2069. 

Of  transportation : 

Definitions:  2070. 

Obligations  of  carrier  extensive  to  agent :  207 1 . 

Liability  of  carrier :  2072. 

Place  and  time  of  delivery :  2073. 

Price  of  transportation  of  woman  not  increased  by  giving  birth 
to  child  en  route:  2074. 

Other  provisions  regarding :  2075-2078. 

Hunting: 

Gives  ownership  of  wild  animals :  686. 
Where,  may  be  done :  688,  689. 

When  hunter  acquires  animal  hunted,  and  when  he  cannot  pursue : 
693,  694. 

Husband: 

Under  eighteen  years  of  age  needs  curator  for  administration  of  con- 
jugal partnership :   1 93. 
Cannot  be  guardian  of  natural  children  without  consent  of  wife :  59 1 . 
Of  testatrix,  cannot  be  witness  to  her  testament :  1068. 

Illegitimate  Children  : 
What  are:  51,  52. 

Illiterates  : 

Cannot  be  tutors  or  curators :  586. 

Immaterial  Services  : 

Rules  governing  some :  2064-2069. 

Immovables:  654-668:  See  Things. 

Implements  : 

Not  subject  to  attachment  in  case  of  cession  of  property :  1677. 

Impubes: 

Defined:  34. 

Imputation  op  Payments  . 
See  Payment. 

I 
InCommendam,  Partnership: 

What  is:  2087. 

See  Partnership. 

Incapacities: 

For  tutorships  and  curator  ships: 

Who  are  incapable  of  exercising :  586. 

by  reason  of  sex :  587. 
age:  588. 
How  age  to  be  fixed  in  absence  of  proof :  589. 


629 

Stepfather  cannot  be  guardian  of  stepchild  :  590. 
Husband,  without  consent  of  wife,  cannot  be  guardian  of  nat- 
ural children:  591. 
Son  cannot  be  guardian  of  profligate  father :  592. 
Debtors  or  creditors  cannot  be  guardians :  594. 
Difference  of  religion  an  incapacity :  596. 
Occurring  subsequently  to  appointment :  597-599. 
General  rules  relating  to :  600-60 1 . 
Insanity  of  guardian :  598. 

Incestuous  Child: 
Defined:  52. 

Incompatibility  : 

Between  legal  and  constitutional  provisions,  latter  to  be  preferred : 
between  Code  provisions,  rule  regarding,  art.  5,  law  57  of 
1887,  p.  544. 

Incorporeal  Things  :  See  Things,  Incorporeal. 

Indivision  : 

No  one  obliged  to  remain  in,  of  a  thing  held  in  common,  when :    1 374 . 

Infant: 

Defined:  34. 

Ingratitude  : 

Revocation  of  donations  inter  vivos  by  reason  of :  1485. 

Inheritance: 

Is  the  assignment  under  a  universal  title  made  by  man  or  the  law : 

f  IOlu,   IOI  I. 

Possession  of  is  conferred  at  the  moment  it  is  deferred :  757. 
Acceptance  of: 

Is  express  or  implied  :   1298. 

When  title  of  heir  understood  to  be  assumed :   1 299. 

Purely  conservative  acts  do  not  imply  acceptance :   1 300. 

When  alienation  of  any  hereditary  effect  implies :   1 30 1 . 
benefit  of  inventory  enjoyed  and  by  whom :   1 302. 

Person  declared  heir  at  instance  of  creditor,  understood  to  be 
such  with  regard  to  other  creditors :   1 303. 
Petition  of: 

Right  of  person  proving  right  to  inheritance :   1 3  2 1 . 

Extent  of  action :  1322. 

Rules  for  restitution  of  fruits  and  allowance  of  improvements : 

1323- 
Liability  of  person  occupying  inheritance  in  good  or  bad  faith 

with  regard  to  alienation  or  deterioration :   1 324. 
Heir  has  also  re  vendicatory  act  ion :   1325. 
Prescription  of  right  of:   1326. 
Vacant: 

When  inheritance  to  be  declared,  and  publication  of  declaration : 

administration  of  heir  who  accepts,  if  two  or  more  heirs, 

and  powers:  1297. 


630 

Inn: 

Establishment  of,  causes  presumption  of  domicile :  80. 

Innkeeper: 

Liability  of  for  effects  brought  into  inn  by  guests :  2265-22 7 1 . 

Insanity  : 

Of  one  of  the  spouses,  not  cause  for  separation :  155. 

Curatorship  and  interdiction  of  the  insane:  See  Curatorship  of 

the  Insane. 
Insane  persons  cannot  be  tutors  or  curators :  586. 
Of  tutor  or  curator :  effects  on  acts  executed  during  guardianship : 

598. 
Persons  under  interdiction  by  reason  of,  cannot  be  witnesses  to 

wills:   1068. 
Insane  person  cannot  commit  offense  or  fault;  person  in  charge 

of,  liable  for :  2346. 

Insinuation  : 

Defined:   1458. 

See  Donations  Inter  Vivos. 

In  Solidum  : 

See  Obligations,  Solidary. 

Inspection: 

Personal,  by  Judge,  as  a  proof  of  obligations :  1757. 

Instruments,  Private  : 

Have  no  value,  when  public  instrument  required :  22. 

Means  of  proof  of  obligations :  1757. 

When  and  in  what  cases,  have  force  of  public  instrument :  1 76 1 .      ♦ 

From  when  date  of,  considered  with  regard  to  third  persons:   1762. 

Note  of  debtor  on,  which  have  always  been  in  his  possession :  1 764. 

Extension  of  proof  between  parties :  1 765. 

Value  of,  executed  to  alter  public  instruments :  1 766. 

Instruments,  Public  : 

How  form  of  determined :  2 1 . 

Proof  of  authenticity  of :  21. 

Form,  formalities  and  authenticity  of,  executed  in  foreign  country : 

21. 
If  a  proof  of  obligations :  1757. 
What  is,  and  weight  of:  1758,  1759. 
Absence  of,  cannot  be  supplied  by  other  proof  in  acts  and  contracts 

requiring:   1760. 
Extent  of  proof  of :  between  parties :  1 765. 
Indispensable  to  perfect  sale  of  realty,  servitudes  and  hereditary 

succession:  1857. 
What  understood  by,  and  acts  or  contracts  to  be  embodied  in: 

2577-2579- 

Interdiction: 

See  Curators  ;  Curatorship. 


63 1 

Interest : 

Legal  rate  of:  and  interest  on  interest :  2229-2235. 

Interpretation  : 

Of  contracts:  rules  for:  161 8-1624. 

i  nterpretation  of  laws  :  25-32. 

Interruption: 

In  the  acquisitive  prescription  of  things :  2522-2525. 
Of  prescription  which  extinguishes  judicial  actions :  2539-2540. 
Of  prescription  of  certain  actions  which  prescribe  in  a  short  time : 
2544- 

Intestate  Succession: 
Defined:  1009. 

See  Succession  Mortis  Causa. 

Intimation  : 

Defined:  2373. 

Intoxicated  Person  : 

Liable  for  damage  committed  through  his  offense  or  fault :  2345. 

Inventory : 

To  be  made  of  property  of  children  of  widower  remarrying :  1 69-1 7 1 . 
Formal:  form  and  solemnities :  471,  1310. 

Provisions  regarding,  to  be  made  of  property  of  ward :  468-479. 
To  be  made  by  usufructuary:  834,  835,  836,  837. 

persons  enjoying  right  of  use  or  habitation :  872. 
Benefit  of:  See  Benefit  of  Inventory. 

Islands  : 

Rules  for  adjudication  of  new,  formed  which  do  not  belong  to  the 
State:  726. 

Joint  Stock  Company  : 
What  is:  2087. 

See  Partnership. 

Judicial  Costs: 

Prescription  of :  2542. 

Judiciary  : 

Members  of,  may  be  excused  from  guardianship :  602. 

Judicial  Code  : 

In  force:  Law  57,  1887,  art.  1,  11,  543. 

Judicial  Decisions  : 
Force  of:  17. 

Juristic  Persons  : 

See  Persons,  Juristic. 


632 

Justices  of  the  Supreme  Court  : 

Forbidden  to  purchase  property  sold  as  consequence  of  litigation  in 
which  they  have  intervened :  1854. 

Keys: 

Delivery  of,  one  of  the  means  of  tradition  of  corporeal  movables :  754. 
In  the  restitution  of  a  building  that  of  the  keys  included :  962. 

Law;  Laws: 
Defined:  4. 

Ignorance  of,  not  an  excuse :  9. 
Effects  of:  11-24.  ' 

Is  obligatory :  1 1 . 
How  prorhulgated :  12. 
Date  of  promulgation :  12. 
Not  retroactive :  13. 

Rights  conferred  by  may  be  renounced,  when :  15. 
Binding  upon  citizens  and  foreigners :  18. 

To  which  Colombians  residing  in  foreign  country  are  subject :  1 6. 
Interpretation  of :  25-32. 
With  authority :  25. 
By  way  of  doctrine :  26. 
Repeal  of:  71-72. 

Express  or  implied :  7 1 . 
General  rules  as  to  validity  and  application  of:  arts.  1-49  of  law 
153  of  1887,  pp.  555-56o. 
Lease : 

Denned:  1973. 
Of  things: 

Things  susceptible  of :  1974. 
Price  of  thing  leased :  1975. 

How  determined :  1976. 
Lessor  and  lessee :  1977. 
How  thing  leased  to  be  delivered :  1978. 
Parties  may  withdraw  when :   1979. 
Preference  when  same  thing  leased  to  two  persons :  1980. 
What  property  included  in  provisions  governing,  of  Civil  Code : 

1 98 1. 
Expiration  of: 

In  what  manners :  2008. 

When  term  of  not  fixed,  notice  to  quit  necessary :  2009. 

Notice  given  for  abatement,  cannot  be  revoked,  when: 

2010. 
Other  case  in  which  notice  to  quit  necessary :  201 1 . 
When  duration  of  determined  or  term  fixed :  2012. 
Obligation  to  pay  rent,  when  thing  returned  before  last 

day:  2013. 
Renewal  of,  rules  governing:  2014,  2015. 
When  lease  terminates  before  expiration  of  term:  2016. 
Damages  recoverable  from  lessor  when  not  absolute  owner : 

2017. 
Expropriation  of  thing  leased  for  public  utility :  201 8. 
Who  obliged  to  respect  lease :  2020. 


633 

Damages  payable  by  lessee,  extensive  to  sublessees :  202 1 . 

Agreement  not  to  alienate  thing  leased :  2022. 

If  thing  leased  attached,  lease  subsists:  2023. 

On  account  of  repairs  preventing  enjoyment :  2024. 

Rights  of  lessee  in  such  case :  2024. 
Lessor  cannot  terminate,  under  excuse  of  needing  thing: 

2025. 
Insolvency  of  lessee,  does  not  necessarily  terminate :  2026. 
Of  leases  executed  by  guardian,  father  and  husband  as 
administrators:  2027. 
Of  buildings: 

Locative  repairs  to  be  made  by  tenant:  2028. 
Other  obligations  of  tenant :  2029,  2030. 
When  lessor  may  eject  lessee:  2031. 
Lease  of  furnished  house:  2032. 

warehouse  or  store :  2033. 
Notice  to  quit  to  be  given  in  advance :  2034. 
Default  in  payment  of  rent:  2035. 
Of  rural  property: 

Obligations  of  lessor :  2036. 

lessee:  2037,  2038. 
Power  of  lessee  to  plant  or  sow:  2039. 

Liability  of  lessee  for  encroachments  by  third  persons:  2040. 
Reduction  of  lease  price  does  not  lie  for  fortuitous  event,  except 

as  co-tenant  on  shares:  2041. 
Lease  of  tenement  with  cattle:  2042. 
Notice  to  quit  when  no  term  stipulated:  2043. 
Rule  for  payment  of  price  in  absence  of  agreement :  2044. 

Legacy : 

What  is:  ion. 

Of  a  thing  of  public  ownership  and  common  use  or  which  forms  part 

of  building:  1163. 
Of  a  thing  belonging  to  another  which  must  be  acquired:  1164. 

not  the  testator's:  nor  the  assign's  who  is  to  deliver  it: 

1 165. 
of  another  which  passed  into  power  of  testator  before  his 

death  or  into  that  of  assign:  1 166. 
of  another  which  assign  acquires  after  death  of  testator : 

1167. 
in  which  testator  owns  part  only:  1168. 
when  place  in  which  kept  designated  and  found  else- 
where: 1 169. 
when  place  in  which  kept  designated  and  not  found: 
1 1 69. 
Of  fungible  things :   1 1 70. 
Of  future  things :  1 1 7 1 . 

Of  specific  but  undetermined  thing  in  possession  of  testator:  1172. 
Generic:  not  limited  to  what  exists  in  patrimony  of  testator:  1 1 73. 
Of  one  thing  among  several  which  the  testator  thought  he  had  : 

1 1 74. 
Of  selection:  11 75. 
State  in  which  thing  bequeathed  must  be  delivered :  1 1 76. 


634 

Of  a  tenement  or  of  a  lot:  1177. 

Of  part  of  a  tenement :   11 78. 

Of  a  house  with  its  furniture  and  contents,  or  of  country  plantation : 
1 1 79. 

Of  a  carriage :  1 1 80. 

Of  a  flock  or  herd :  1 1 8 1 . 

Of  different  shares  in  same  thing  to  different  persons:  1182. 

Of  residue:   1 182. 

Of  specific  thing  passes  with  charge  thereon  to  legatee:   1 183. 

Of  a  thing  with  charge  prohibiting  alienation:   1184. 

Of  actions:   1185. 

Of  a  credit:   1185. 

Of  thing  pledged  left  the  debtor:   1186. 

Remission  of  debt  by  testament:  1187. 

Release  from  payment  of  debt  without  determination  of  sum :   1 1 88. 

To  a  creditor:   1189.  . 

Debts  confessed  in  the  testament:  1191. 

Of  voluntary  support  without  determining  form  or  amount:  1192. 

Destruction  or  alienation  of  thing  bequeathed,  or  encumbrance  or 
substantial  change  in:  1193. 

Rules  regarding  payment  of :  See  Payment  of  hereditary  and  testa- 
mentary debts. 

Legal  Portion: 
See  Legitime. 

Legal  Representatives  : 
Who  are:  62. 

Legal  Sanction  : 
What  is:  6. 

Legatee : 

Defined:  ion. 

Legislator  : 

Is  the  general  interpreter  of  the  law,  and  his  words  must  be  given 
meaning  intended  by:  25,  28. 

Legitimacy  : 

Conferred  on  children  by  marriage,  effects  of:  40. 

Legitimation  of  Children  :  See  Children,  Legitimated. 


Legitimes  and  Betterments  : 

What  is  understood  by  legitime:  1239. 
Rigorous,  of  legitimate  descendants:  1242. 
Rules  and  provisions  regarding:  1 243-1 264. 

Lesion  beyond  Moiety: 

Ground  for  rescission  of  acceptance  of  a  testamentary  assignment 
1291. 


635 

Lessee  : 

Defined:  1977. 

Principal  obligations  of:  1996. 

Care  to  be  observed  in  preservation  of  thing:  1997. 

Locative  repairs  to  be  made  by:  1998. 

What  are:  1998. 
Liability  of,  for  his  family,  employees  and  guests:  1999. 
Bound  for  payment  of  price  or  rent :  2000. 
Rules  as  to  dispute  as  to  price  or  rent:  2001. 
Payment  of  price  or  rental,  when  to  be  made:  2002. 

in  rural  and  urban  property:  2002. 
Damages  to  be  paid  by,  when  lease  terminated  through  his  fault : 

2003. 
Cannot  sublease,  without  express  stipulation :  2004. 
Restitution  of  thing  at  end  of  lease:  2005. 

How  to  be  made :  2006. 

When  lessee  in  default  in  making:  2007. 
See  Lease  ;  Lessor. 

Lessor  : 

Who  is:  1977. 

Obligations  in  the  lease  of  things:  1977-1982. 

Liability  of,  when  delivery  of  thing  impossible:  1983. 

tardy  in  delivery :  1984. 
Repairs  necessary  to  thing  leased:  1985,  1986. 
Damages  recoverable  by  lessee  for  disturbance  in  possession : 

1987,  1988. 
Against  whom  action  of  third  person's  as  to  thing  leased  to  be 

directed:   1989. 
Cases  in  which  lease  may  be  terminated  or  rescinded:  1990. 
Damages  to  be  paid  by,  when:   1991. 
Damages  not  to  be  paid  by:  1992. 
Reimbursement  by.  of  necessary  expenditures  for  indispensable 

improvements:  1993,  1994. 
Retention  of  thing  leased :  1995. 
See  Lease  ;  Lessee. 

Liability  for  Offenses  and  Faults  : 
Damages  for:  2341-2360. 

Life  Annuity  : 
Defined:  2287. 
Rules  governing :  2287-2301. 

Light: 

Provisions  regarding  legal  servitude  of:  931-934. 
See  Servitudes. 

Limits  : 

Right  to  have,  of  estate  fixed :  900. 

Lines  in  relationship: 

Direct  or  straight,  collateral  or  transverse,  and  subdivisions,  41-46. 


636 

Loan  for  Consumption  : 
Defined:  2221. 
How  perfected :  2222. 

ownership  transferred :  2222. 
What  is  due  if  consumable  things  not  money,  loaned :  2223. 

money  loaned :  2224. 
Term  for  payment  if  no  period  fixed  by  contracting  parties :  2225. 
If  agreement  to  pay  when  able,  Judge  will  fix  term  for:  2226. 
Loan  made  by  person  not  able  to  alienate :  2227. 
Liability  of  lender  for  bad  quality  of  thing  loaned :  2228. 
If  interest  not  stipulated,  borrower  may  pay  before  term  expired : 

2229. 
How  interest  may  be  stipulated :  2230. 
Conventional  interest  exceeding  one-half  current  rate  to  be  reduced 

by  Judge  at  instance  of  debtor :  2231. 
If  interest  stipulated  without  rate  stated :  2232. 
Legal  rate  of  interest :  2232. 
Other  provisions  regarding  interest :  2233-2235. 

Loan  for  Use  : 

Defined:  2200. 

How  perfected :  2200. 

Rights  of  lender :  2201. 

Use  which  borrower  must  make  of  thing :  2202. 

Obligations  of  borrower  for  preservation  of  thing,  etc. :  2203,  2204. 

Restitution  "of  thing  by  borrower :  2205. 

To  whom  to  be  made :  2206. 
Borrower  cannot  retain  thing :  2207. 
Rule  when  thing  lost,  stolen  or  robbed,  or  attached :  2208. 
Restitution,  when  suspended :  2209. 

When  obligation  to  make  ceases :  2210. 
Rights  and  obligations  passing  to  heirs :  22 1 1 . 
Alienation  by  heirs  of  thing  loaned ;  action  of  lender :  2212. 
Action  of  borrower  against  lender  if  owner  demand  thing  loaned : 

2213. 
Thing  loaned  to  a  number  binds  them  solidarity :  2214. 
Death  of  lender  does  not  extinguish :  2215. 
Expenditures  in  preservation  of  thing  loaned :  2216. 
When  lender  to  indemnify  borrower  for  bad  quality  or  condition  of 

thing:  2217. 
Right  of  retention  by  borrower  in  certain  cases :  2218. 
When  called  precarious :  2219. 

considered  precarious :  2220. 

Locative  Repairs  : 
Defined:  1998: 

See  Lessor;  Lessee;  Lease. 

Loss  of  a  Thing  Due  : 

When  in  possession  of  the  debtor :  1 730. 

Through  his  fault  or  while  he  is  in  default :  1 73 1 . 
By  a  fortuitous  event  while  debtor  in  default :   1 73 1 . 
What  to  be  observed  when  debtor  liable  for  fortuitous  event:  1732. 


637 

• 

1  'roof  of  fortuitous  event :  1 733. 

Reappearance  of  thing  lost :   1 734. 

Who  cannot  plead  fortuitous  event :   1735. 

Creditor  may  require  debtor  to  cede  to  him  his  rights  against  person 
responsible  for :   1 736. 

Destruction  of  thing  by  voluntary  act  of  debtor  ignorant  of  obliga- 
tion: 1737. 

Extent  of  liability  of  debtor :  1 738. 

Destruction  of  thing  in  possession  of  debtor  while  creditor  tardy  in 
receiving  it:  1739.  __  _ 

Lunatics  :  See  Insanity. 


Males  : 

Age  of  infancy,  puberty,  etc. :  34. 
Nubility  of:  116. 

Man: 

What  is  understood  by :  33. 

Mandatary  : 

Defined:  2142. 
See  Mandate. 

Mandate  : 

Defined:  2142. 

May  be  gratuitous  or  for  a  consideration:  2143. 

Services  to  which  rules,  subject:  2144. 

Affair  of  interest  to  mandatary  only,  constitutes  mere  advice :  2 145. 

When  true,  exists:  2146. 

Simple  recommendation  does  not  constitute :  2147. 

Cases  in  which  mandatary  becomes  negotiorum  gestor:  2 148. 

How  conferred :  2149. 

When  perfect :  2 1 50. 

Of  absent  persons  who  by  profession  assume  direction  of  other's 

affairs:  2 151. 
A  number  of  mandataries  and  principals  possible :  2152. 
Rules  governing  acts  of,  if  several  agents :  2153. 
Obligations  of  minor  mandatary  or  married  woman :  2 154. 
Liability  of  mandatary :  2155. 
Special  and  general :  2156. 
Administration  of: 

Mandatary  must  confine  himself  to  terms  of  mandate :  2157. 

Powers  conferred  by :  2 1 58,  2 1 59. 

Proper  execution  of,  includes  what :  2 1 60. 

Mandatary  may  delegate  power  when :  2 1 6 1 . 

Unauthorized  or  not  ratified  substitution ;  effects  against  third 
persons:  2162. 

If  delegation  authorized  by  principal,  new  mandate  constituted 
2163. 

Actions  of  principal  against  substitute :  2 1 64. 

Inability  of  mandatary  to  make  donations,  does  not  include 
small  customary  fees :  2165. 


638 

Acceptance  by  mandatary  of  what  is  due  principal :  2 166. 
Power  to  compromise  does  not  include  power  to  bind,  etc.  12167. 
To  sell,  includes  power  to  receive  price :  2 168. 
To  mortgage,  does  not  include  power  to  sell,  etc. :  2 169. 
Mandatary  cannot  purchase  thing  ordered  sold  by  principal: 

2170. 
Powers  to  receive  or  give  out  money  at  interest :  2171,2172. 
Mandatary  may  act  in  most  advantageous  manner  for  principal : 

2173,  2174, 
Manifestly  pernicious  to  principal,  not  to  be  executed :  2176. 
Mandatary  unable  to  act,  need  not  constitute  himself  negotio- 

rum  gestor:  2176. 
Mandatary  contracting  in  his  own  name,  does  not  bind  prin- 
cipal: 2177. 
Liability  of  mandatary,  when  he  assumes  responsibility  for 

solvency  of  debtors :  2178. 
Rule  regarding  specie  in  possession  of  mandatary :  2179. 
Liability  of  mandatary  exceeding  powers :  2 1 80. 
Account  of :  2 1 8 1 . 
Interest:  2182. 
Mandatary  liable  for  what  he  receives  from  third  persons: 

under:  2183. 
Obligations  of  principal: 

Who  called  principal  in :  2142. 
Principal  obligations  of :  2 1 84. 
Obligations  contracted  by  agent  which  principal  must  respect : 

2186. 
Effects  for  principal  of  partial  execution  of  mandate :  2187. 
Retention  of  effects  possible  by  mandatary :  2188. 
Termination  of: 

Cases  in  which  it  terminates :  2189. 

Revocation:  2190,  2 191. 

Mutual  rights  of  principal  and  mandatary  as  to  documents 

given  latter:  2192. 
Effect  of  renunciation  by  mandatary :  2 193. 
Effect  of  death  of  principal :  2194,  2195. 
Notice  of  death  of  mandatary  to  be  given  principal :  2196. 
Mandate  of  woman  before  marriage :  2197. 
Absence  of  one  mandatary  when  several  joint,  terminates :  2 198. 
Acts  of  mandatary  ignorant  of  termination :  2 199. 

Maritime  Wills: 

See  Testaments,  Privileged. 

Marriage  : 

A  contract:  47. 

May  be  celebrated  by  proxy :   114. 

How  constituted  and  perfected :  requisites :  1 1 5. 

Who  may  contract :  n6;  art.  11  of  law  57  of  1887,  p.  546. 

not  contract  without  permission,  and  of  whom :  1 17-120. 
Guardian  may  refuse  consent  for,  when :  1 22. 
Cannot  be  celebrated  without  consent  necessary,  etc. :   1 23. 
Person  contracting  without  permission,  may  be  disinherited :  124. 
Other  effects:  125. 


639 

Before  whom  to  be  celebrated :  1 26. 
Witnesses  to :  who  cannot  be :  127. 
Application  for  permission  to  contract :   128. 

Examination  of  witnesses  by  Judge  as  to  qualifications  of  contract- 
ing parties :   1 30. 
If  contracting  parties,  residents  of  different  parishes :   131. 
Dissolution  of: 

By  death:   152. 

Divorce  does  not  dissolve  marriage :  153. 
See  Divorce. 
Nullity  of: 

For  mistake  in  person :   1 40,  No.  1 . 

When  contracted  between  male  under  fourteen  or  woman  under 
twelve:  140,  No.  2,  143. 

For  want  of  free  consent :  140,  No.  3,  144. 

When  want  of  consent  presumed :  140,  No.  3,  144. 
force  or  fear:  140,  No.  5,  145. 

For  want  of  consent  on  part  of  abducted  woman:  140,  No.  6, 

H5- 
When  celebrated  between  adulterous  woman  and  accomplice: 

140,  No.  7. 
When  contracting  parties  in  same  line  of  relationship :  140.  No.  9. 

brother  and  sister:  140,  No.  9. 
When  contracted  between  stepfather  and  stepdaughter,  etc. : 

140,  No.  10. 
When    contracted    between    adopting    father    and    adopted 

daughter,  etc. :   140,  No.  11. 
When  prior  marriage  still  in  force :  140,  No.  12. 
When  between  ward  and  tutor  and  curator :  or  descendants  of : 

140,  Nos.  13,  14,  146;  art.  14  of  law  57  of  1887,  p.  546. 
When  not  celebrated  before  Judge  and  competent  witnesses : 

art.  13  of  law  57  of  1887,  p.  546. 
Wljen  contracted  by  persons  related  to  in  first  degree  of  consan- 
guinity: art.  13  of  law  57  of  1,887,  P-  546. 
Cohabitation  after  discovery  of  mistake  cures  nullity :  142. 
Effects  of  annulment :  148. 
Children  procreated  in  marriage  declared  null,  are  legitimate: 

149. 
Donations  and  promises  made  in  consideration  of,  subsist  not- 
withstanding: 150. 
Opposition  to:  132. 

Appeals  from  decisions  as  to :  133. 
Date  to  be  fixed  for  celebration  of,  when :   134. 
How  celebrated :   135. 

When  contracting  party  in  imminent  danger  of  death :   136. 
Record  of  to  contain  what :  137. 

Registration  of :   137. 
Requisites  for,  by  proxy :   139. 

Without  consent  of  ascendant,  cause  for  disinheritance :  1 266. 
Second  or  subsequent: 

Obligation  of  widower  remarrying  having  children   by  pre- 
vious marriage :  1 69. 
Curator  to  be  appointed  even  when  children  have  no  property ; 
170. 


640 

Is  a  requisite  for  permission  for  marriage  of  widower :  171. 
Penalty  if  widower  fails  to  prepare  inventory :  172. 
Time  which  must  elapse  befor  widow  can  remarry :  1 73. 
Formalities  to  be  observed  by  widow  having  children :  175. 
Proceedings  for  declaration  to  which  of  two  marriages  child 

belongs:  234,  235. 

Marriage  Agreement  : 

Power  to  demand  separation  of  property  cannot  be  renounced  in : 

198. 
Defined:  1771. 

Documents  necessary  for :   1772. 
Stipulation  prohibited :  1773. 

Is  entered  into  without  written  agreement,  when :  1774. 
Wife  may  renounce  acquets  and  gains :  1775. 
Stipulations  which  may  be  made  in :  1 776. 
Made  by  minor:  1777. 
By  person  under  guardianship :  1777. 

From  what  time  considered  irrevocably  entered  into :  1 778. 
Additions  to  and  alterations  in :  1 779. 
Designations  to  be  made  in :  1 780. 

Marriages,  Register  of  : 

How  record  of  marriage  before  Corregidor  to  be  made :  364. 

outside  of  Territory  to  be  made :  365. 
Note  to  be  made  in  record  of,  regarding  legitimation  of  child :  366. 
Record  of  marriages  resulting  from  judicial  proceedings :  367. 
See  Register  of  Civil  Status. 

Marshaling  Assets  :  See  Discussion. 

Masters  : 

Responsible  for  damage  committed  by  servants,  when :  .2349. 

Material  Works  : 

Contracts  for :  See  Contracts  for  material  works. 

Maternity  : 

Disputed:  335-338. 

Who  may  impugn :  335,337. 

Within  what  term,  etc. :  336. 
When  action  expires :  337. 

Fraud  of  spurious  birth  or  substitution,  prejudices  all  partici- 
pants therein :  339. 

Memoranda : 

Of  testator:  value  of  papers,  etc.,  to  which  person  refers  in  testa- 
ment: 1058. 

Military  Code  : 

In  force:  Law  57,  1887,  art.  1,  pp.  n,  543. 

Military  Wills  : 

See  Testaments,  Privileged. 


641 

Mines: 

Use  of  product  of,  when  comprised  in  usufruct :  843. 

Denounced  by  spouse,  to  be  added  to  community  assets :  1 786. 

. 
Ministers: 

Of  any  religion  prohibited  from  receiving  in  certain  cases  under 

testament,  etc. :  1922. 

Minor: 

Defined:  34. 

Curatorship  of:  See  Curatorship  of  Minors. 

Under  ten  years  of  age  not  liable  for  offense  or  fault,  but  persons  in 
charge  of:  2346. 

Mode  : 

What  is  understood  by :  1147. 

See  Assignments,  Modal. 

Money: 

In  what  kinds  of,  payment  to  be  made  in  loan  for  consumption  and 
what  amount  to  be  received  in  copper,  silver,  etc. :  2224. 

Mortgage  : 

What  is  understood  by :  2432. 

Is  indivisible :  2433. 

Must  be  embodied  in  public  instrument :  2434. 
recorded:  2435. 

Registration  also  necessary  for  yalidity  of  certain  mortgage  con- 
tracts celebrated  without  State :  2436. 

Date  of  that  suffering  relative  nullity  and  later  validated :  2437. 

May  be  constituted  subject  to  condition  and  from  or  to  certain  date : 
2438. 

What  property  susceptible  of:  2439. 

Property  subject  to,  may  be  alienated :  2440. 

Of  eventual  or  limited  thing :  244 1 . 

Co-owner,  before  division,  may  mortgage  his  quota  only:  2442 

Can  be  placed  only  on  realty :  2443. 

Right  secured  under,  to  future  property :  2444. 

Affects  movables  considered  immovables  by  accession :  2445. 

Extends  also  to  improvements,  payments  received  for  lease,  etc. : 
2445,  2446. 

Upon  usufruct  or  mines :  or  quarries :  2447. 

Rights  of  mortgage  creditor :  2448. 

Exercise  of   mortgage   action  does  not  prejudice  personal  action 
against  debtor :  2449. 

Abandonment  of :  2450. 

Rights  of  creditor  if  mortgaged  tenement  deteriorates :  245 1 . 

Gives  creditor  right  to  proceed  against  tenement  subject  to,  who- 
ever the  owner :  2452. 

Rights  of  third  possessor  reconvened  :  2453. 

Of  tenement  for  another's  debt :  2454. 

Limitation  of,  and  reduction  in  certain  cases:  2455. 

How  record  of,  to  be  made :  2456. 

Extinction  of :  2457. 


642 

Mother : 

When  responsible  for  acts  of  child :  2347. 

Movables:  See  Things.     663-668. 

Mutuum  :  See  Loan  for  Consumption. 

Naked  Ownership  : 
What  is:  669. 

Natural  Children  : 
What  are:  52. 

Neglect  : 

Degrees  of:  63. 

NegoTiorum  GesTio  :  or  management  of  another's  affairs  f 
Is  one  of  the  principal  quasi-contracts :  2303. 
Defined:  2304. 
Obligations  of  person  assuming:  2305-2307. 

interested:  2308. 
Against  prohibition  of  person  interested :  2309. 
Right  of  person  managing  another's  business  believing  it  his 

own:  2310. 
When  mandate  becomes :  2 148. 

New  Works  : 

Action  to  destroy  or  prohibit,  etc. :  See  Actions,  Possessory. 

Notaries  Public. 

Where  to  be  established :  2546. 

What  in  charge  of :  2547. 

Residence  must  be  in  seat  of  circuit :  2548,  2549. 

Cannot  discharge  duties  beyond  circuit :  2550. 

Substitutes  and  cases  where  they  act :  2551.  . 

Appointment  of,  and  of  substitutes:  2552. 

Eligibility  for  office  of :  2553. 

Ineligibility  for :  2554. 

Incompatibility  with  other  offices :  2555. 

Cannot  assume  management  of  affairs  of  others :  2556. 

Term  of  office :  2557. 

Place  and  hours  of  office :  2558,  2559. 

Duties  within  and  without  office:  2559,  2560,  2561. 

Prohibitions  imposed  upon :  2562. 

Books  to  be  kept  by:  and  formalities  to  be  observed  in  keeping: 


2563-2575. 


Memorandum  book :  2564-2569. 

Protocol:  2570,2571-2573. 

Cannot  be  removed  from  office :  2574. 

To  keep  register  of  civil  status :  2575. 

Confidence  which  law  deposits  in,  and  general  correlative  duties  im- 
posed: 2576. 

Character  of  instruments  executed  before :  2577. 


643 

Acts  and  contracts  which  must  or  can  be  celebrated  before:  2578, 

2579- 
Rules  governing  placing  of  instruments  in  protocol :  2580. 
Proceeding  when  instrument  left  unsigned :  2585. 
Attesting  witnesses :  2586. 

Conditions  and  functions  of:  2586. 

Who  cannot  be :  2587. 

In  testaments :  2588. 
Must  be  acquainted  with  persons  desiring  services :  2589. 

Proceeding  when  not  acquainted  with :  2589. 
Liability  of  in  acts  or  contracts  which  they  authorize :  2590,  2591. 
Identification  witnesses :  what  are:  2589. 
Notice  to  be  given  parties:  2592. 
When  to  refuse  services:  2593. 
Formalities  and  general  designations  to  be  contained  in  instruments : 

2594- 

Which  are  substantial :  2595. 
When  instrument  drawn  by  parties  and  when  by  notary :  2596,  2597. 
Number  of  copies  of  instruments  to  be  issued :  2599-2604. 
Copies  of  cancelled  instruments  how  to  be  issued :  2605. 
Protocolization  of  instruments,  judgments,  etc. :  2606,  2607. 
Counter  instruments :  2608. 

Notices  to  be  made  to  the  parties  and  effect  of  omission  of: 
2608,  2609. 
Cancellation  of  instruments :  defined :  2610. 

When  to  take  place :  26 1 1 . 

How  to  be  made:  2612. 

Effects  of:  2613. 

Certificates  of,  to  be  issued :  2614. 
Archives  of,  and  their  inspection :  2615-2623. 
Fees  of:  2624-2628. 

Substitution  of  for  certain  acts  in  certain  places :  2629-2632. 
Arrangement  and  custody  by  notary  of  books  sent  him  by  other 

offices:  rules  governing  issue  of  copies  and  cancellations  in 

same:  2633-2635. 
Substantial  formalities  of  instrument  passing  before  Judge :  2636. 

Novation  : 

Defined:  1687. 

Mandatary  cannot  make,  when :  1 688. 

Requisites  to  validate :   1 669. 

How  to  be  made:  1690. 

When  there  is  none :  1 69 1 . 

Substitution  of  pure  obligation  for  conditional :  1692. 

Not  presumed :  1 693. 

If  intention  to  make  not  apparent,  both  obligations  subsist :  1693. 

When  substitution  of  new  debtor  produces :   1 694. 

If  person  delegated  substituted  against  his  will,  there  is  only  a  ces- 
sion of  property :  1695. 

Person  delegated  by  one  whom  he  believed  to  owe  must  keep  prom- 
ise: 1697. 

Person  delegated  by  one  who  believed  himself  a  debtor :   1698. 

Interest  of  first  debt  extinguished  by :  1699. 


644 

Privileges  of  first  debt  extinguished  by :  1 700. 

Pledges  and  mortgages  of  original  obligation  do  not  pass  to  subse- 
quent one:  1 70 1. 

Operated  by  substitution  of  new  debtor,  or  between  creditor  and 
one  of  solidary  co-debtors :   1 702. 

When  reservation  not  effective  pledges  and  mortgages  may  be  re- 
newed:  1703. 

Discharges  co-debtors  who  have  not  consented  to :  1 704. 

Obligation  of  co-debtors  when  second  obligation  consists  simply  in 
adding  or  deducting  specific  thing,  etc. :  1705. 

In  the  event  of  imposition  of  new  penal  obligation :  1 706. 

Effect  of  change  of  place  for  payment :  1 707. 

Extension  of  term  does  not  constitute :  1 708. 
But  relieves  sureties  not  assenting :  1 708. 

Nor  does  reduction  of  term  constitute :  1 709. 

Considered  as  not  made,  if  creditor  consent  subject  to  consent  of  co- 
debtors,  and  latter  do  not :  1 7 10. 

Nullity  and  Rescission  :  (Special  cases  of  nullity  are  mentioned  under 
each  head.) 
Definition  and  division  of :  1 740. 
Absolute:  defined:  1741. 
Relative:  defined:  1741. 

Absolute  must  be  declared  by  Judge :  when  manifestly  apparent : 
1742. 

May  be  requested  by  public  prosecutor :   1 742. 

Not  subject  to  being  cured  except  when :   1 742. 
Who  can  demand  declaration  of  relative :   1 743. 
Cannot  be  pleaded  if  fraud  on  part  of  incapacitated  person :   1 744. 
Of  acts  or  contracts  of  incapacitated  persons ;  1 745. 

public  corporations  and  juristic  persons :  1 745. 
Judicially  declared,  gives  right  to  restoration  to  previous  condition : 

1746. 
When  null  contract  celebrated  with  incapacitated   person  gives 

other  party  right  to  demand  reimbursement :  1 747. 
Judicially  declared,  gives  revendicatory  action  against  third  per- 
sons: 1748. 
If  two  or  more  have  contracted  with  third  person,  nullity  in  favor  of 

one  does  not  benefit  others :  1 749. 
Term  within  which  to  demand  rescission  and  how  computed :  1750. 

For  heirs  of  one  under  legal  age :   1 75 1 . 
Ratification  when  proper  may  be  express  or  tacit :   1752. 
Requisites  to  validate  express  ratification:   1753. 
Implied  ratification  defined :   1754. 
Neither  ratification  valid  if  not  emanating  from  party  having  right 

to  plead  nullity :  1 755. 
Of  acts  contrary  to  law :  6. 

Nurses: 

Rules  for  immaterial  services  they  render :  2064. 

Oath: 

Required,  when  request  made  for  copy  of  instrument  lost  or  des- 
troyed :  2603. 


645 

Obligations  : 

Alternative: 

Defined:  1556. 

How  debtor  discharged :  1557. 

Rules  governing :   1 558-1 561. 
Civil  and  natural:  defined:   1527. 

Rules  regarding:   15 28- 15 29. 
Conditional  and  modal: 

What  is  conditional :  1530. 

Positive  and  negative  conditions:   1531. 

Conditions  physically  and  morally  impossible :   1532. 

Condition  negative  of  thing  physically  impossible:   1533. 

Potestative  and  casual :   1534. 

Mixed  conditions:   1534. 

Contracted  under  potestative  condition  depending  on  will  of 
obligee  is  null :   1535. 

Suspensive  and  resolutory  condition:   1536. 

When  suspensive  lapses:   1537. 

resolutory  considered  not  written:   1537. 
positive  condition  considered  lapsed  and  negative  ful- 
filled:  1539. 

How  conditions  to  be  fulfilled :   1 540,  1 54 1 . 

Performance  of  conditional,  when  demandable:   1542. 

Destruction  of  thing  promised  before  fulfillment  of  condition : 

1543- 

Restitution  of  thing  upon  performance  of  resolutory  condition : 

1544- 
When  fruits  due  after  performance  of  resolutory  condition: 

1545- 
Resolutory  condition  involved  in  bilateral  contracts:  1546. 
Alienation  of  movable  thing  due  subject  to  term  or  condition : 

1547- 

Of  immovable  under  same  conditions:   1548. 
Transmission  to  heirs  of  obligation  and  right  in  conditional  con- 
tract:  1549. 
Rules  as  to  certain  testamentary  assignments,  extended  to: 

1550. 
Determinate : 

Defined:  1562. 
Rules  regarding:  1563- 1564. 
Divisible  and  indivisible: 
What  are:   1581. 

Solidary  need  not  be  indivisible:   1582. 
What  creditors  may  demand  if  neither  solidary  nor  indivisible 

and  exceptions:  1583. 
In  indivisible,  each  creditor  and  debtor  entitled  and  obligated 

to  all;  also  extended  to  heirs:  1584,  1585. 
Prescription  interrupted  as  to  one  of  debtors  of  indivisible: 

1586. 
Time  to  be  granted  sued  co-debtor  of  indivisible  obligation: 

.1587- 
Extinction  of  indivisible  by  performance  of  anv  of  debtors: 

1588. 


646 

If  two  or  more  creditors,  one  cannot  remit  debt  or  receive  price : 
without  consent  of  others:  1589. 

Divisibility  of  action  for  damages  for  delay  or  non-performance 
of  indivisible :  1590. 

Co-debtors  of  an  act  to  be  performed  in  common : 
Effects  of: 

Contract  is  law  for  contracting  parties:  1602. 
Must  be  executed  in  good  faith:  1603. 

Liability  of  debtor  in  various  contracts:  1604. 

Obligation  to  give  and  preserve:  1605,  1606. 

At  whose  risk  specific  thing  due:  1607. 

When  debtor  said  to  be  in  default:  1608. 

Default  in  bilateral  contracts:  1609. 

Right  of  creditor  against  debtor  in  default  in  doing  something : 
1610. 

Promise  to  celebrate  contract  produces  no  obligation :  1 6 1 1 . 

Obligation  not  to  do :  161 2. 

What  indemnity  for  damages  comprises:  16 13. 

Emergent  damage:  what  is:  16 14. 

Ceasing  income :  what  is:  16 14. 

From  when  indemnity  for  damages  due:  161 5. 

What  damages  debtor  in  default  liable  for:  161 6. 

Rules  for  damages  for  default  in  paying  sum  of  money:  161 7. 
Extinction  of: 

Always  extinguished  by  agreement  of  parties:  1625. 

Other  ways  of  extinguishing  totally  and  partially:  16? c 
Indeterminate : 

What  are:  1565. 

Rules  regarding:  1566,  1567. 
Limited: 

Rules  regarding:  1551-1554. 
Proof  of:  See  Proof. 
Solidary: 

What  is  understood  by :  1568. 

Thing  solidarity  owed  must  be  one  and  the  same:  1569. 

To  whom  debtor  may  make  payment:  1570. 

Creditor  may  sue  each  or  all  debtors:  1571. 

Effects  of  suit  brought  by  creditor  against  some  of  debtors: 
1572. 

Express  or  implied  renunciation  of  solidarity:  1573. 

Renunciation  of  solidarity  of  periodical  pension:  1574. 

Remission  of  debt  as  to  any  of  solidary  debtors:  1575. 

Novation  between  creditor  and  one  debtor:  1576. 

Solidary  debtor  sued;  when  he  may  oppose  in  compensation 
debt  of  co-debtor:  1577. 

Obligation  of  solidary  debtors  if  thing  perishes  by  fault  or 
default  of  one  of  them :  1578. 

Debtor  who  pays  subrogated  in  rights  of  creditor:  1579. 

If  business  for  which  contracted  concerns  only  one  or  more  of 
debtors,  others  considered  sureties:  1579. 

Obligation  of  heirs  of  each  of  solidary  debtors:  1580. 
Source  of:  1494. 
With  a  penal  clause: 

What  is  understood  by:  1592. 


647 

Nullity  of  principal  obligation  carries  with  it  that  of:   1593. 

But  not  vice  versa'  1593. 

Exception:  1593. 
Rights  of  creditor  before  and  after  debtor  in  default:   1594. 
When  debtor  incurs  penalty:  1595. 
If  debtor  performs  in  part  and  creditor  accepts:  1596. 

obligation  divisible,  penalty  also  divided  among  heirs:  1597. 
debt  not  payable  in  part,  heir  preventing  payment  in  full 

subject  to  penalty :   1597. 
If  immovable  subject  to  penalty  by  mortgage :   1 598. 
Penalty  enforceable  even  though  debtor  plead  that  rrorr-per- 

formance  not  prejudicial :   1599. 
Penalty  and  damages  cannot  both  be  demanded :  1 600. 
Reduction  of  penalty,  when :   1 60 1 . 

Occupancy : 

What  things  are  acquired  by :  685. 
Hunting,  fishing :  686-689.. 
Wild  animals:  what  are:  687. 
Domestic  animals :  what  are:  687. 
Domesticated  animals,  what  are :  687 
Hunting  on  land  of  others :  688. 
Rights  of  owner  of  lands  against  hunter :  689. 
Fishing  in  rivers  and  lakes  of  public  use :  690. 

Restrictions  upon :  691,692. 
When  hunter  or  fisher  considered  as  taking  possession  of  animals 

hunted:  693,  694. 
Wild  animals  in  confinement,  whose  property :  695. 
Property  of  bees  abandoning  hive :  696. 
Pigeons  leaving  dovecote,  whose  property:  697. 
Domestic  animals  subject  to  ownership :  698. 
,    Treasure  trove :  699-705. 
Treasure :  what  is  called :  700. 

Found  on  property  of  another :  how  divided  :  701 . 
Vacant  property :  what  is :  706. 
Unclaimed  property :  what  is :  706. 

Ownership  of:  707. 
Requisites  for  return  of  thing  considered  vacant  or  unclaimed :  708. 
After  thing  sold,  shall  be  considered  as  lost  to  owner :  709. 
Flotsam  and  jetsam  to  be  returned  to  persons  interested,  when :  710. 

Rules  regarding :  711. 
How  property  declared  vacant  or  unclaimed :  7 1 2. 

OF  Age  : 

What  expression  includes :  34. 

Officer  : 

Obligation  of,  in  command  of  troops  as  to  deaths  occurring  among : 

361. 
Military  testament  executed  before :  1 098-1 104. 

Onerous  Contract  • 
Defined:  1497 


648 

Opening  : 

Of  succession:  when  and  where  opened  to  property  of  a  person: 

IOI2. 

Of  a  testament :  before  what  judge  to  be  opened  and  published :  1065. 
Proof  before  opening  and  publication :  1066. 

Ownership  : 

What  is  understood  by :  669. 

Naked :  what  is :  669. 

Quasi  ownership  in  incorporeal  things :  670. 

With  regard  to  products  of  talent,  etc. :  671. 

Of  chapels  and  cemeteries  situated  on  private  lands:  672. 

Modes  of  acquisition  of :  673. 

Paintings  : 

Rules  regarding  in  case  of  specification :  732 . 

Parentage,  Civil: 
Defined :  50. 
With  regard  to  incestuous  children :  60. 

Parents  : 

Obligations  of  legitimate  children  to :  250-268. 

See  Children,  Legitimate  : 
Principal  duty  of  legitimate  children  to :  250,252. 
Duty  of,  to  children :  253. 
May  visit  children  out  of  their  power :  256. 
Maintenance  of  legitimate  children :  257,258. 
Correctional  powers  of  father,  and  restriction  thereof :  262. 
Right  to  select  profession  or  career  of  child :  264,  265. 
Cannot  exercise  rights  over  abandoned,  etc. :  266. 
Responsible  for  acts  of  children :  2348. 

Partition  of  Property  : 

Rights  of  co-assigns  to  demand  division :  1374. 

Made  by  deceased :  1375. 

Rules  as  to  who  may  demand:  1 376-1 379. 

Who  cannot  be  partitioner :  1380. 

Disqualified  person  may  be  appointed  by  testator :  1 38 1 . 

Among  persons  having  free  disposition  of  property :  1382. 

Appointment  of  partitioner  when  any  assign  has  not  free  disposition 

of  property:  1383. 
Partitioner  not  obliged  to  accept :  1 384. 

Penalty  for  not  accepting  in  certain  case :  1 384. 
Oath  and  declaration  of  partitioner  accepting :  1 385. 
Partitioned  liability :  1 386. 
Judicial  decisions  to  precede:  1387. 

When  suspended  or  not  for  testamentary  questions :  1 388. 
Term  within  which  to  make :  1389. 
•    Costs  of:  1390. 
Rules  to  be  observed  in :  1 39 1 . 
Basis  for  adjudication  of  specific  things :  1392. 
Partitioner  must  set  aside  fund  for  creditors :  1393. 


649 

Hereditary  effects,  rules  for  liquidation  and  distribution  of :  1 394. 
Of  fruits  accruing  after  death  of  testator:  1395. 
hanging  at  time  of  adjudication :   1 396. 
Petition  of  heir  desirous  of  assuming  additional  debts :  1397. 
Proceeding  when  patrimony  of  deceased  confounded  with  property 

of  other  persons :  1 398. 
When  to  be  submitted  for  judicial  approval :  1 399. 
To  whom  titles  of  objects  adjudicated  to  be  delivered :  1400. 
Warranty  to  which  co-assigns  are  bound :  1402. 

When  action  does  not  lie :  1403. 

How  payment  in  case  of,  to  be  divided :  1404. 
Nullity  or  rescission  of :  1405. 

Involuntary  omission  of  objects,  not  cause  for :  1406. 
How  rescissory  action  stopped :  1407. 

Who  cannot  bring  action  for  annulment  or  rescission  of :  1408. 
Prescription  of  action  for  annulment,  etc. :  1409. 
Remedy  of  person  not  desiring  to  bring  action  for  annulment :  14 10. 

Partners : 

Obligations  of,  to  each  other: 

How  contributions  to  be  made  to  common  assets :  2 108. 

Indemnity  for  delay  in  making  contribution  promised :  2 109/ 

By  whom  deterioration  or  loss  of  things  contributed  borne: 
2110. 
In  case  of  eviction :  2 1 1 1 . 

To  whom  fixed  amount  assured,  when  industry  only  contrib- 
uted: 21 12. 

Increase  of  contributions :  2 1 1 3 . 

No  partner  can  incorporate  third  person  in  partnership:  21 14. 

Special  right  of  each  partner  against  partnership :  2115. 

If  one  partner  has  received  his  share  of  credit  and  others  not : 
2116. 

Profits  which  belong  to  partnership :  2 1 1 7. 

Imputation  of  payment  made  to  managing  partner:  21 18. 

Liability  of,  for  damages  caused  partnership :  2 1 19. 
Obligations  of,  with  respect  to  third  persons: 

When  understood  that  partner  contracts  for  partnership :  2 1 20. 

Proportion  in  which  debts  of  partnership  to  be  paid :  2 1 2 1 . 

Right  of  creditors  of  a  partner  against  partnership  property: 
2122. 

Liability  of  partners  in  commendam  and  stockholders :  2 1 23. 

Partnership  : 
Defined:  685. 

Decisions  in  deliberations  of  partners :  2080. 
There  is  none,  without  each  partner  contributing  and  sharing  in 

profits:  2081. 
Prohibited:  2082. 

Which  cannot  legally  subsist :  2083. 
Nullity  of  with  respect  to  third  persons :  2084. 
Different  kinds  of: 

Civil  or  commercial :  2085. 

Division  into  general,  in  commendam,  and  joint  stock  company : 
2087. 


650 

Prohibition  to  partners  in  commendam:  2088. 

General,  may  have  one  or  more  partners  in  commendam:  2089. 
Rules  to  which  civil  joint  stock  companies  subject :  2090. 
Articles  of:  principal  clauses  of: 

Beginning  and  end  of :  209 1 . 

Rules  as  to  division  of  profits  and  losses :  2092,  2093,  2094,  2096. 

Computation  of  profit  or  loss  of  industrial  partner :  2095. 
A  dministration  of : 

To  whom  to  be  entrusted :  2097. 

Renunciation  of  administrator  or  his  removal :  2098. 

Proceeding  if  managing  partner  removed  or  resigned :  2099. 
If  several  managing  partners,   company  may  continue: 
2099. 

May  be  renounced  or  revoked  when,  if  conferred  by  subsequent 
act:  2100. 

Partner  having,  may  act  against  opinion  of  co-partners,  when : 
2101. 

Acts  of  administration  by  one  partner,  when  several  man- 
aging: 2102. 

Restrictions  upon  managing  partner:  2103. 

Duties  of  as  to  preservation,  etc.,  of  capital :  2 104. 

Managing  partner  binds  partnership  when :  2 105. 
Account  of,  to  be  rendered  by :  2 106. 

Rules  when  management  not  conferred  on  one  or  more  part- 
ners: 2107. 
Dissolution  of: 

Dissolved  by  expiration  of  term  or  event  of  condition  fixed  for 
its  termination :  2 1 24. 

By  the  consummation  of  business  for  which  established  :  2125. 

By  insolvency  of  partnership  or  extinction  of  thing  which 
formed  its  object :  2126. 

By  failure  of  partner  to  contribute  others  may  dissolve:  2127. 

Effect  of  loss  of  contribution  of  partner :  2128. 

Effect  of  death  of  partner:  2129. 

When  stipulation  to  continue  partnership  with  heirs  under- 
stood as  of  right :  2 1 30. 

What  due  heirs :  2 1 3 1 . 

Through  incapacity  or  insolvency  of  a  partner :  2132. 

By  unanimous  agreement  of  partners :  2 133. 

By  renunciation  of  a  partner :  2 1 34. 

Rules  regarding  renunciation :  2 135-2138. 
Dissolution: 

Provisions  applicable  to  partner  withdrawing  without  renun- 
ciation: 2139. 

Cases  in  which,  can  be  pleaded  against  third  persons:  2140. 

Division  of  partnership  assets  upon :  2 141 . 
See  Partners. 

Party  Walls  : 

See  Servitudes. 

Pastures  : 

Rules  applicable  to  lands  which  cannot  be  divided  or  separate  :1  by 
fences:  2333. 


65i 


Paternal  Power  : 
Defined:  288. 

Acquired  also  by  legitimation :  289. 

Does  not  extend  to  public  employee  as  to  his  employment :  290. 
Property  that  father  enjoys  usufruct  of :  291. 
What  forms  peculium  of  child  :  29 1 . 

How  long  father  enjoys  legal  usufruct  of  child's  property :  292. 
Father  not  obliged  to  give  bond  by  reason  of  legal  usufruct :  293. 
Child  considered  emancipated  as  to  industrial  peculium :  294. 
Property  of  which  father  does  not  have  administration :  295. 
Condition  to  not  administer  does  not  deprive  of  usufruct :  296. 
Inventory  of  child's  property :  297. 
Responsibility  of  father  in  administration :  298. 
When  father  loses  administration  of  property :  299. 
Acts  of  child  without  consent  of  father :  301,  302. 
Alienation  or  mortgage  of  real  property  of  child :  303. 
Donation  or  lease  of  real  property  of  child :  304. 
Curator  required  by  child,  etc.,  to  litigate  with  father:  305. 
How  he  may  appear  in  court  actively  or  passively :  306,  307. 
Paternal  intervention  not  necessary  in  criminal  actions :  308. 

testamentary    dispositions : 

309. 
Causes  for  suspension  of,  and  requisites  for  such  suspension:  310, 

311. 

Payment : 

What  is  understood  by :  1626. 
How  to  be  made:  1627. 
Periodical:   1628. 
Expenses  occasioned :  1629. 
By  whom,  may  be  made :  1630- 1633. 
To  whom  to  be  made :   1 634- 1 644. 
Where  to  be  made :   1645- 1647. 
How  to  be  made:   1648- 165 2. 
Imputation  of :   1653  et  seq. 

How  payment  to  be  imputed  when  capital  and  interest  due : 

1653- 
a  number  of  debts:  1654. 
no  imputation  made :  1655. 
By  consignment: 

Payment  may  be  made  by,  even  against  will  of  creditor:  1656. 

Defined:   1657. 

Tender  must  precede :   1 658. 

Requisites  to  make  tender  valid  :   1658. 

Authorization  of  judge  to  consign :  1 659. 

Citation  of  creditor :   1 660. 

When  creditor  absent :   1661. 

Expenses  of  tender  and  consignment :   1 662. 

Effects  of:   1663. 

Rules  governing  withdrawal  of :   1 664,  1 665. 
With  subrogation: 

What  is  understood  by :   1666. 

How  third  person  subrogated  in  rights  of  creditor :  1667. 


652 

When  by  operation  of  law :  1668. 

agreement  with  creditor :   1 669. 
Effects  of  subrogation :   1 670,  1 67 1 . 
By  cession  of  property: 

What  is  cession :  1672. 
Shall  be  admitted  by  Judge  when :   1 673. 
Proceedings  to  obtain :   1674. 

Cases  in  which  creditors  not  obliged  to  accept :   1675,  1676. 
Property  to  be  ii^cluded  in :   1677. 
Effects  of:   1678. 

Debtor  may  withdraw,  upon  payment:  1679. 
Arrangements  with  creditors,  after :   1680,  1681. 
Who  not  benefited  by :  1682. 
With  the  benefit  of  competency: 

What  is  understood  by :  1 684. 
To  whom  creditor  obliged  to  grant :   1685. 
Support  and  benefit  cannot  be  demanded  together :   1 686. 
Of  hereditary  and  testamentary  debts: 
How  divided  among  heirs :   1 4 1 1 . 
Insolvency  of  one  heir  not  charge  on  others :   1 4 1 2 . 
Division  of,  in  case  of  usufruct  or  trust :   14 13. 
Heir  creditor  or  debtor  of  deceased :   1 4 1 4. 
Procedure  when  testator  divides,  among  heirs:  14 15. 

heirs  agree  on  division :   1 4 1 6. 
Division  of  testamentary  charges :   1 4 1 7 . 
How  legacies  of  periodical  pensions  paid :   141 8. 
Obligations  of  legatees  with  regard  to :  141 9. 
Contribution  of  legatees  to  legitimes :   14 19,  1420. 
Obligation  with  regard  to  debts  of  legatee  obliged  to  deliver 

legacy:  142 1. 
Action  of  mortgage  creditor  as  to  thing  bequeathed  :   1422. 

legatee   who   pays  debts  to  which  thing  bequeathed 
subject:   1423. 
Legacies  with  an  onerous  cause  estimable  in  money :   1424. 
Rules  for  division  of  testamentary  obligations  between  owner 

and  usufructuary  of  same  thing :   1425. 
Testamentary  charges  on  owner  and  usufructuary :   1426. 

thing  given  in  usufruct  when  owner 

does  not  determine  who  to  pay : 

1427. 

Rules  on  usufruct  constituted  in  partition  of  inheritance :   1428. 

Testamentary  charges  between  trustee  and  cestui   que   trust: 

1429. 
Distribution  of  legacies  and  actions  of  legatees :   1430. 
How  to  pay  hereditary  creditors  and  execute  legacies :   143 1 . 
Expense  of  delivery  of  legacies :  1432. 

When  not  sufficient  in  succession  to  pay  all  legacies :   1433. 
Executory  titles  against  deceased :  how  to  be  enforced  against 

heirs:  1434. 
Right  of  person  paying  under  error :  2313. 
In  the  performance  of  a  natural  obligation :  2314. 
Under  error  of  law :  2315. 
Proof  in  case  of  confession  or  denial  of  payment  by  defendant : 

2316. 


65.? 

Presumption  with  regard  to  person  giving  what  he  does  not 

owe:  2317. 
Obligation  of  person  receiving  what  is  not  due  and  liability  of 

for  deterioration  or  loss  of  thing:  2318,  2319. 
Obligation  of  him  who  sells  thing  not  due :  2320.  - 
Action  against  third  persons  of  person  paying  what  he  did  not 

owe:  2321. 

Penal  Clause  : 
Defined:  1592. 

See  Obligations  with  a     .     .     . 

Penal  Code  of  Cundinamarca : 

In  force  in  Republic :  Law  57  of  1887,  art.  1,  pp.  11,  543. 

PER  Capita  : 

Succession:  defined:  1042. 

Person  : 

What  is  understood  by :  33. 

Personal  Actions  : 

Result  from  personal  rights :  666. 

Personal  Rights  : 
What  are:  666. 

Persons : 

Are  natural  or  juristic :  73. 

What  is  understood  by :  74. 

Domiciled  and  transient:  75. 

Beginning  and  end  of  existence  of:  90  et  seq.,  art.  9  of  law  57  of 

1887,  p.  545. 
Death  terminates  existence  of :  94. 
Juristic: 

WThat  are:  633. 

Foundations  or  corporations  not  established  by  law,  are  not : 

634- 
Industrial  associations  and  public  corporations  not  subject  to 

rules  governing :  635. 
By-laws  of  corporations  and  their  approval :  636. 
When  acts  of  corporation  binding  upon  individual  members: 

637. 

What  constitutes  majority  of  members :  638. 

By  whom  corporations  represented:  639,  arts.  25,  26  of  law 
57  of  1887,  p   549. 

When  acts  of  representative  binding  upon  corporation :  640. 

Binding  force  of  by-laws  of  corporations :  641 . 

Property  which  may  be  acquired  by  corporations  and  restric- 
tions as  to  retention  of  realty :  643. 

May  acquire  property  of  any  kind:  art.  27  of  law  57  of  1887, 

P-  549- 
Incapacity  of  communities,  corporations,  associations  and  en- 
tities of  a  religious  character  to  acquire  realty :  644. 


654 

Actions  of  creditors  as  to  property  of :  646. 
Dissolution  of  corporations  which  are :  647. 
Disposition  of  property  of  dissolved  corporations :  649. 
How  foundations  to  be  governed :  650. 
When  foundations  expire :  652. 
Domicile  of:  86. 


Physicians  : 

Prescription  of  fees  of :  2542.         g 

Pigeons  : 

Ownership  with  regard  to :  697. 

Plants  : 

When  considered  immovables,  and  when  movables :  657. 

Pledge,  Contract  of  : 
What  is :  2409. 
Creditor  called  what :  2409. 

Supposes  a  principal  obligation  to  which  accessory :  2410. 
How  perfected :  24 1 1 . 
Who  can  pledge :  2412. 
Who  may  constitute:  2413. 
How  credit  may  be  given  in :  2414. 
Of  thing  belonging  to  third  person :  2415. 

Right  of  creditor  if  owner  demands :  2416. 
Retention  of  thing  belonging  to  debtor  to  serve  as :  241 7. 
Action  of  creditor  losing  seizin  of :  2418. 
Liability  of  pledgee :  2419. 
Creditor  cannot  use :  2420. 

Payment  to  be  made  by  debtor  to  recover :  242 1 . 
Right  of  pledgee  against  debtor  in  default :  2422. 
Debtor  and  creditor  may  attend  sale  of :  2423. 
How  debtor  may  redeem  pledge  to  be  sold :  2424. 
Cases  when  creditor  may  demand  award  of,  without  sale :  2425. 
When  creditor  may  retain :  after  payment :  2426. 
Imputation  of  value  of :  242  7. 
Restitution  of ,  by  creditor :  2428. 
Right  of  purchaser  of,  to  demand  delivery  of :  2429. 
Indivisibility  of :  2430. 
How  right  of  extinguished :  243 1 . 
Praetorian  governed  by  provisions  of  Judicial  Code :  2468. 

Political  Rights  : 

Qualification  as  to  age  does  not  extend  to :  344. 

Poor: 

Bequest  for  " the  poor : "   11 13,  n  14,  1115. 

When  may  be  excused  from  tutorship  or  curatorship :  602. 

Possession  : 

What  is  understood  by :  762. 

Possessor  considered  owner  until  proof  to  the  contrary :  762. 


655 

May  be  under  various  titles :  763. 
Regular  and  irregular :  764. 
Just  title,  what  is:  765. 

not:  766. 
Validation  of  null  title :  767. 
Good  faith,  what  is :  768. 

usually  presumed :  769. 
Bad  faith  must  be  proved :  769. 
Irregular:  what  is:  770. 
Defective  or  vicious,  what  is :  771. 
Violent:  772-774. 
Clandestine:  774. 
Mere  tenancy  of  a  thing :  775. 
Of  incorporeal  things,  susceptible  of  same  qualities  and  vices  as  that 

of  corporeals :  776. 
Lapse  of  time  does  not  convert  mere  tenure  into :  777. 
Computation  of  possession  of  previous  possessor:  778. 
Of  persons  possessing  pro  indiviso:  779. 

Presumptions  regarding:  who  may  take  and  acquire :  780-781. 
Modes  of  acquiring  and  losing: 

In  the  name  of  another :  782. 

Of  an  inheritance,  when  acquired :  783. 

Acquired  by  those  not  having  free  administration  of  property : 
784. 

Of  a  thing  whose  tradition  takes  place  by  record :  785. 

Is  preserved  even  though  tenure  transferred :  786. 

Of  a  thing  ceases  when  another  seizes  it :  787. 

Of  a  movable  not  considered  lost,  when :  788. 

Requisite  for  cessation  of,  recorded:  789. 

Violently  or  clandestinely  taken,  effect :  790. 

Possession  of  thing  usurped  by  one  who  held  in  name  of  another 
791. 

Intermediate  time,  when  recovered:  702. 
Not  interrupted,  what  is:  2522-2525. 

Possessory  Action  : 
See  Actions. 

Posthumous  Child  : 

Curatorship  of:  See  Curatorship  of  Posthumous  Child. 

Precarious  Loan  for  Use. 
Denned:  2219. 
When  considered  to  exist:  2220. 

Preceptors : 

Rules  regarding  immaterial  services  of:  2064-2068. 
Prescription  of  fees  of  professors  in  schools  and  colleges :  2542. 

Predial  Servitude  :  See  Servitudes. 

Prefect: 

Application  of  term:  Law  57,  1887,  art.  2,  p.  1,  543. 


656 

Designates  charitable  institution  to  which  in  certain  cases  testa- 
mentary assignment  to  be  applied :   1 1 13. 
Or  Corregidor :  Constitution  of  domicile  by  declaration  to :  82. 
.  Duties  of,  with  regard  to  books  of  civil  list :  388,  389. 

Preference  of  Credits  : 

Rights  of  creditor  under  personal  obligation :  2488. 

Rights  retained  by  owners  of  as  to  identifiable  things  in  possession 

of  debtor:  2489. 
Nullity  of  acts  executed  by  insolvent  debtor  or  who  has  assigned, 

2490. 
Rules  as  to  acts  prior  to  cession  or  insolvency :  2491 . 
Action  of  creditors  against  property  of  insolvent  debtor:  2492. 
Causes  of  preference  among  creditors :  2493. 
What  credits  privileged :  2495. 
Privileged  credits  of  first  and  second  classes :  2495. 

Enumeration  and  classification:  2495-2497. 
Preference  between  credits  of  first  and  second  class :  2498. 
Third  class  comprises  mortgage  creditors:  order  of  payment:  2499. 
When  credits  of  first  class  extend  to  mortgaged  property :  2500. 
Mortgage  creditors  need  not  await  result  of  general  meeting:  2501. 
Privileged  credits  of  the  fourth  class :  enumeration:  2502. 

Preference  among :  2503. 
Property  as  to  which  preferences  of  Nos.  3  to  6  of  fourth  class  of 

creditors  understood  to  be  constituted :  2504. 
Confession  of  bankrupt  husband,  father  or  guardian  not  sufficient : 

2505- 
Place  of  preference  of  credits  of  fourth  class  and  rights  against  third 

possessors:  2506. 
How  credits  of  first  and  fourth  classes  affect  property  of  heir:  2507. 
No  other  causes  of  preference :  2508. 
Graduation  of  credits  of  the  fifth  class  :*  2509. 
Other  rules  regarding :  2510,2511. 

Public  instruments  given  preference  over  private  instruments :  art. 
36  of  law  57  of  1887,  p.  552. 

Prescription  : 

Defined:  2512. 
Must  be  pleaded :  2513. 

May  be  expressly  or  impliedly  renounced :  2514. 
Who  may  renounce :  2515. 

vSurety  may  oppose  renunciation  by  debtor :  2516. 
Rules  governing  applied  also  in  favor  and  against  public  corpora- 
tions: 2517. 
A  cquisitive  of '  things  : 

What  things  acquired  by :  2518,2519. 

Omission  of  certain  acts  and  tolerance  of  others  does  not  con- 
stitute: 2520. 

Addition  of  time  of  predecessor  to  successor's  for  purposes  of: 
2521. 

Uninterrupted  possession :  defined:  2522. 

Natural  interruption :  2523. 

Civil  interruption :  2524. 


657 

i 

Interruption  in  thing  held  in  common :  2525. 

When  acquisite  of  real  property  and  real  rights  against  title 
recorded  obtains :  2526. 

Ordinary  and  extraordinary:  2527. 

Requisites  and  time  for  ordinary:  2528,  2529. 

Ordinary  may  be  suspended  in  favor  of  certain  persons:  2530. 

Rules  to  acquire  extraordinary :  2531,  2532. 

How  real  rights,  especially  inheritance  and  servitude,  acquired 
by:  2533. 

Effects  of  judicial  decree  which  declares:  2534. 
As  a  means  of  extinction  of  actions  and  rights:  requisites:  2535. 

Time  for,  of  ordinary  and  executory  actions :  2536. 
mortgage  action :  2537. 
an  action  claiming  a  right :  2538. 

How  interrupted :  2539. 

Interruption  in  favor  or  against  one  of  the  co-creditors  or  co- 
debtors:  2540. 

Persons  in  whose  favor  suspended :  254 1 . 
General,  of  short  terms: 

Of  three  and  two  years :  2542,  2543. 

Run  against  whom :  2544. 

Interruption  of :  2544. 

President  of  the  Union  : 

May  be  excused  from  being  guardian:  602. 

By-laws  of  corporations  which  are  juristic  persons  must  be  sub- 
mitted to,  for  approval :  636. 

Absence  of  expression  of  will  of  person  establishing  foundation  to  be 
supplied  by :  650. 

Functions  of,  with  regard  to  testament  executed  in  foreign  country : 
1085,  1086. 

Prestations  : 

Mutual,  between  possessor  and  person  seeking  revendication :  961- 

972. 
Periodical:  1145,  14 18. 

Presumption: 

Defined:  66. 

Divided  into  legal  and  of  right :  66. 

Constitutes  one  of  the  proofs  of  obligations:  1757. 

Of  death  by  disappearance:  cases  in  which  disappearance  of  per- 
son considered  as  absence :  96. 

Who  presumed  dead  by :  conditions  and'  requisites  to  be  fulfilled 
and  by  virtue  of  which  provisional  possession  of  property 
granted:  97. 

Effects  of  decree  of  provisional  possession :  99. 
See  Absentee. 

Price  : 

Of  sale  must  be  determined  and  how :  1 864. 

May  be  left  to  third  person  or  one  of  contracting  parties :  1 865. 


658 

Priests  : 

Cannot  receive  legacy  or  inheritance :  1 02  2 . 

Principal  Contract  : 
Defined:  1499. 

'■ 

Privileges  : 

See  Preference  of  Credits. 

Prodigals  : 

Curatorship  of:  531-544.  See  Curatorship  of  Prodigals. 
Interdiction  of :  See  Curatorship  of  Prodigals. 

Professors  : 

Prescription  of  fees  of :  2542. 

Profit  : 

What  is  understood  by,  in  partnership :  208 1 . 

Promises  : 

Made  in  consideration  of  marriage  subsist  notwithstanding  annul- 
ment of  marriage :  150. 
To  celebrate  a  contract,  produces  no  obligation :  1 6 1  t  . 

Promulgation  of  Laws  :  12. 

Proof : 

Cases  in  which  public  instrument  cannot  be  supplied :  22. 
Of  civil  status: 

Source  of  principal  proof s  of :  347. 

Value  of  records  of,  made  in  foreign  country,  etc. :  382. 
When    authenticity  of   documents  constituting,  presumed:  proof 

against  same :  392-394. 
Of  witnesses  and  of  notorious  possession  of  civil  status :  395. 
What  comprises  notorious  possession  of    state  of    marriage    and 

legitimate  child :  requisites  to  adduce :  396-399. 
Effects  of  judicial  decision  on  legitimacv  of  child  or  disputed  ma- 
ternity: 401. 
Conditions  requisite  in  decision:  402. 

Legitimate  contradicter  of  questions  of  paternity  or  filiation:  403. 
Representation  of  heirs  of  contradicter  by  his  death :  404. 
Of  collusion  in  proceeding :  term  within  which  admissible :  405. 
Copies  taken  from  books  kept  by  ministers  of  Catholic  cult  before 

1853,  considered:  409. 
Of  obligations: 

Burden  of,  on  person  who  pleads :   1757. 

Of  what  it  consists :   1757. 

Credibility  of  public  instrument :  1 759. 

Absence  of  cannot  be  supplied  with  other  proof  when  for- 
mer require:  1760. 

Force  of  private  instrument  acknowledged  by  party :  1 761 . 
Date  of,  as  to  third  persons:  1762. 

Private  records  of  entries :  1 763. 


659 
■ 

Memoranda  in  margin  or  on  back  of  instruments :  1 764. 

Extent  of  proof  of  instruments  between  parties :  1 765. 

Effect  of  private  and  counter  instruments  to  alter  agreement 
made  in  public  instrument :  1 766. 

Proof  of  witnesses  not  admissible  as  to  obligation  which  should 
have  been  in  writing :  1767. 

Presumptions  are  legal  or  judicial :  1 768. 
Requisites  of :  1768. 

Weight  of  confession  against  person  making  and  when  proof 
admitted  against :  1769. 

Reference  to  Judicial  Code  regarding  further  proof  of  obliga- 
tions: 1770. 
In  necessary  deposit: 

All  kinds  of,  admissible:  2261. 
Of  witnesses: 

Is  one  of  the  proofs  of  obligations :  1 757. 

Acts  and  contracts  with  regard  to  which  inadmissible:  1767. 

Property : 

What  subject  to  provisions  of  Civil  Code :  20. 

Of  absentee, when  provisional  possession  of  to  be  granted :  97,  No.  6. 
definite  possession  of  to  be  granted:  97,  No.  7,  98, 
et  seq. 
Vacant :  what  is :  706. 

Ownership  of:  707. 
Unclaimed :  what  is :  706. 
Ownership  of:  707. 
See  Occupancy. 
Consists  of  corporeal  and  incorporeal  things :  653. 
Of  the  Union:  what  is:  674,675. 

See  Things. 
Fiduciary :  See  Fiduciary  Property. 

■ 
Protocol : 

To  be  kept  by  notaries,  etc. :  2570,  2571,  2574. 
See  Notaries  Public. 

Purchase  and  Sale  : 
Defined:  1849. 

Who  said  to  sell  and  who  to  buy :  1 849. 
When  price  part  money  and  part  something  else :  1 850. 
See  Sale. 

Purchaser:  See  Purchase  and  Sale ;  Sale;  Thing  Sold: 

Principal  obligation  of :   1928. 

Place  and  time  of  payment :  1929. 

Right  of  vendor  in  case  of  default  of :  1 930. 

Effect  of  clause  not  to  transfer  ownership  except  by  virtue  of  pay- 
ment: 1 93 1. 

Effects  of  resolution  of  sale  for  non-payment  of  price :  1932. 

Action  against  third  possessors  in  preceding  case :   1933. 

Only  proof  admissible  for  resolution,  when  instrument  asserts  pay- 
ment made:  1934. 


66o 

Quarries  : 

Use  of,  when  comprised  in  usufruct:  843. 

Quarters  : 

Division  of  inheritance  into,  when  deceased  leaves  legitimate  de- 
scendants: 1242,  1243. 

Quasi  Contracts  : 

Defined:  2302,  art.  34  of  law  57  of  1887,  p.  551. 
What  are  principal:  2303. 
See  Community. 

Rain  Waters  : 

See  Waters,  Rain. 

Ratification  : 

By  husband  of  wife's  acts :  187. 
By  father  of  acts  of  child :  30 1 . 

In  contracts  to  cure  nullity:  1752-1756.     See  Nuluty  and  Re- 
scission. 

Real  Actions  : 

Result  from  real  rights :  665. 

Real  Contract  : 
Defined:  1500. 

Real  Exceptions  :  2380. 

Real  Right  : 

Defined:  665. 

Real  Property  : 
Defined:  656. 
What  is  considered :  656-661. 

Receivers: 

In  insolvency  proceedings:  prohibition  as  to  purchase  or  sale  of 
certain  property :   1856. 

Redemption:  Agreement  of: 
What  is:  1939. 

Effects  against  third  persons :   1940. 
Rights  and  obligations  of  vendor :   1 94 1 . 
Right  arising  from,  cannot  be  ceded :   1942. 
Time  within  which  action  for  redemption  may  be  instituted:  1943. 

Redhibitory  : 

Action;  defined:  19 14. 
Vice;  defined:  1915. 

See  Warranty.  > 

•     '"       1" 
Register  of  Civil  Status  : 
Officials  in  charge  of :  348. 


66 1 

Acts  to  be  registered :  349. 
See  Births,  Register  of. 

Deaths,  Register  of. 

Marriages,  Register  of. 

Natural  Children,  Acknowledgment  of. 

Adoptions,  Register  of. 
How  entries  in  to  be  made :  372-375. 

Alphabetical  index  to  be  kept  of  persons  referred  to  in :  376. 
Proceeding  when  record  of  birth  or  death  occurring  one  year  pre- 
vious asked:  377. 
Note  to  be  made  at  end  of  each  month  in  register :  378. 
What  to  be  done  with  documents  attached  to  acts :  379. 
Certificates  to  be  issued  by  notaries  and  fees  therefor:  380. 
Action  when  an  entry  omitted  in  record :  381. 
Validity  of  record  made  in  another  State  or  foreign  country :  382. 
Where  to  be  kept  and  liabilities  of  depositaries :  383. 
Right  of  persons  interested  in  case  of  alteration  or  falsification :  384. 
Persons  obliged  to  give  notice  of  births  or  deaths :  385-386. 
Notice  to  be  given  to  Corregidor  in  absence  of  notary :  387. 
Duties  of  Corregidor  with  regard  to :  388,  389. 
Statistics  to  be  sent  by  Notary  to  Prefect,  etc. :  390,  391. 

Authenticity  and  correctness  of  to  be  presumed :  392. 
As  proof  of  civil  status,  and  how  supplied :  393-402. 
How  incorrect  record  corrected :  407. 
What  record  of  legitimation  to  contain :  408. 
Action  when,  for  period  prior  to  September  1,  1853,  necessary:  409. 

Registrar  of  Public  Instruments  : 

Provisions  extended  to  include :  2639. 
,       Duties  of:  2640. 

Books  to  be  kept  by:  and  rules  governing  entries,  etc. :  2641-265 1. 

Fees  of:  2671. 

Provisions  extended  to:  2672. 

Registration  of  Public  Instruments  : 
Purpose  of:  2637. 

Office  for,  and  official  in  charge  of:  2638. 
Titles,  acts  and  documents  subject  to:  2652. 
Offices  in  which  titles  affecting  realty  to  be  recorded :  2653. 
Of  acts  of  partition :  2654. 

Of  titles,  etc.,  the  registration  of  which  is  obligatory:  2655. 
Change  of  name  of  rural  property  and  penalty  for  not  making :  2656. 
How  to  be  made :  rules  for:  2657  et  seq. 
When,  shall  be  annulled  generally  and  specially  that  of  mortgage  or 

other  affecting  realty :  2664,2665. 
Of  a  testament :  2660. 
judgment:  2661. 

an  act  of  partition :  2662. 

a  mortgage:  2663. 
Change  in  name  of  rural  property,  how  recorded :  2666. 
Mention  of  previous  record  in  new:  2667. 

How  titles  to  be  recorded  in  different  books  to  be  inscribed :  2668. 
Note  to  be  made  on  every  instrument  recorded :  2669. 


662 

Record  of  second  or  subsequent  copies  of  recorded  documents :  2670. 

Effects  of: 

Instruments  not  admissible  in  court  unless  recorded :  2673. 
Against  third  persons  not  until  after  recorded :  2674. 
In  certain  cases  register  is  supplementary  proof  to  original  title : 
2675. 

Cancellation  of  record :  rules  and  formalities  necessary,  and  certifi- 
cates of  to  be  issued  by  registrar :  2676-2680. 

Record  cancelled  has  no  legal  force :  268 1 . 

Archives  of  registrar's  office :  rules  extended  to :  2682. 

Relationship  : 

By  consanguinity :  See  Consanguinity. 
By  affinity:  See  Affinity. 

Relatives  : 

Hearing  of :  order  in  which  to  be  heard :  6 1 . 

Prohibition  to  receive  inheritance,  imposed  upon  certain :  of  priest 

who  confesses  testator :   1022. 
To  whom  what  is  left  generally,  considered  assigned :  1 1 22. 

Religion  : 

Requisites  in  order  that  person  professing  different,  from  that  of 
ward  may  be  his  guardian :  596. 

Remission  : 

Of  a  debt,  when  valid :  1 7 1 1 . 

Due  to  mere  liberality,  subject  to  what  rules :  1 7 1 2. 

When  implied :  1 7 1 3 . 

Not  implied  by  remission  of  pledge  or  mortgage :  17 13. 

Rent  Charges  (Censos)  : 

Provisions  regarding:  arts.  101-135  of  law  153  of  1887,  pp.  568-573. 

Renunciation  : 

Of  rights :  when  and  how  can  be  made :  15. 
acquets  and  gains :  by  the  wife:  1777,  1823. 

Repairs: 

Locative :  See  Locative  Repairs.  , 

Repeal  : 

Of  laws:  71-72. 

Representation  (Right  of) : 

Of  what  it  consists  in  intestate  succession :  104 1. 

Representatives,  Legal  : 
Who  are:  62. 

Rescission  : 

See  Nullity. 


663 

Rescissory  Action  : 

Of  creditors  enjoying  benefit  of  separation :  144 1 . 

Residence  : 

Mere,  shall  serve  instead  of  civil  domicile,  when :  84. 
See  Domicile. 

Resolutory  Clause. 

What  is  in  modal  assignments :   1 148. 
See  Assignments,  Modal. 

Respite  : 

Creditors  who  have  granted,  not  obliged  to  accept  cession  of  prop- 
erty:  1675. 

Restaurants  : 

Managers  of,  contract  in  certain  cases  obligations  of  necessary  de- 
positaries: 2272. 


Revendication  : 

What  is  understood  bv:   qa6. 


What  things  subject  to :  947-949. 
Who  may  bring  action  for :  950,  95 1 . 
Against  whom  action  for  may  be  brought :  952. 
Holder  of  thing  must  declare  person  for  whom  he  holds  it :  953. 
Action  against  person  who  alienated  the  thing  the  subject  of:  955. 
of  ownership  against  heirs :  956. 

person  possessing  in  bad  faith :  957. 
Sequestration  of  movable :  958. 

Measures  which  persons  seeking  may  in  certain  cases  request :  959. 
Extends  to  attachment  in  hands  of  third  person :  960. 
Mutual  prestations :  961-971. 

Right  of  Accretion  : 

See  Accretion,  Right  of. 

Rights  : 

Conferred  by  laws  may  be  renounced,  when :  15. 
Political :  qualification  as  to  age  does  not  extend  to :  344. 
Personal :  See  Personal  Rights. 
Real :  See  Real  Rights. 

Rivers : 

Belong  to  the  Union :  677. 


Roads  : 

In  private  lands,  not  the  property  of  the  Union :  676. 

Sale: 

Capacity  for  contract  of: 
Who  capable:  1851. 

Nullity  of  between  certain  persons :  1852. 
Prohibition  with  regard  to  that  made  by  directors  of  public  in 
stitutions:   1853. 


664 

And  to  purchase  by  certain  employees  or  officials :  1854. 
Prohibition  to  tutors  and  curators :  1855. 
Provision  affecting  agents,  syndics  and  executors :  1856. 
Forjn  and  requisites  of: 

When  perfected :  1857. 

Effects  of  agreement  as  to  execution  of  public  instrument  11858. 

With  earnest : 

Retraction  of  sale  and  effects :   1 859,  1 860. 
When  earnest  given  as  part  of  price :  1 86 1 . 
Who  must  pay  costs  of  instrument :   1 862. 
May  be  pure  or  conditional :   1 863. 

subject  to  time  and  comprise  two  or  more  alternative 
things:  1863. 
Immediate  effects  of: 

Preference  between  two  persons  to  whom  same  thing  sold :  1873. 
Sale  of  thing  of  another  ratified  by  owner :  1 874. 

which  vendor  later  acquires  ownership :   1875. 
Loss,  deterioration  or  improvement  of  thing  sold,  by  whom 
borne:  1876. 

Of  a  thing  sold  by  weight,  tale  or  measure :   1877. 
Obligation  of  contracting  party  failing  to  appear  on  date  set  for 

weighing,  etc.,  when  agreement  as  to  price :   1878. 
Sale  subject  to  trial  and  when  considered  stipulated :  1879. 
See  Thing  Sold  ;  Purchase. 
Agreements  accessory  to: 

To  resolve  sale  if  person  betters  price :  1 944. 
Other  licit  agreements :   1 945 . 
Rescission  on  account  of  lesion  beyond  moiety:  1946,  art.  32  of  law 
57  of  1887,  p.  550. 
When  contracting  parties  suffer  lesion  beyond  moiety :  1 947. 
\greement  not  to  institute  rescissory  action  or  agreement  of 

donation  of  excess :  1 950. 
Rescission  does  not  lie  if  thing  lost  or  alienated  by  purchaser : 

i95i. 
Rights  of  vendor  as  to  deterioration :  1952. 
Obligation  of  purchaser  returning  thing :  1953. 
Prescription  of  action  for :  1 954. 

Sanction  :  ^ 

Legal :  what  is :  6. 
Constitutional:  what  is:  7. 

School : 

Opening  of,  a  presumption  as  to  domicile :  80. 

Secretary : 

Tudicial:  prohibition  to  purchase  certain  property:  1854. 

Of  Legation :  requisites  to  validate  testament  executed  before,  ap- 
pointed by  President  of  the  Union :  1085,  1086. 

Of  Foreign  Affairs  of  the  Union :  testament  executed  before  certain 
diplomatic  and  consular  officials  must  pass  through,  for  valida- 
tion: 1085. 

Private :  Rules  as  to  services  of:  2064-2068. 


665 

Security  : 

Defined:  2361. 

Is  conventional,  legal  or  judicial :  2362. 

Substitution  of  mortgage  for  security,  etc. :  2363. 

Obligations  which  may  be  the  subject  of  security :  2364,  2365. 

May  be  executed  to  or  from  a  certain  day  and  under  a  condition, 
2366. 

Pecuniary  indemnity  may  be  agreed  upon  between  debtor  and  cred- 
itor: 2367. 

Who  may  bind  themselves  as  surety :  2368. 

How  surety  to  bind  himself:  2369. 

Terms  cannot  be  more  onerous  than  those  of  debtor :  2370. 

May  be  given  without  an  order  or  notice :  2371. 

for  juristic  person  and  vacant  inheritance :  2372. 

Is  not  presumed :  2373. 

Includes  accessories  of  debt,  such  as  interest,  etc. :  2373. 

Who  to  furnish :  2374. 

When  renewal  necessary :  2375. 

Capacity  and  solvency  of  surety  and  fault  for  which  liable:  2376, 

2377- 
Rights  and  obligations  of  surety  pass  to  heirs :  2378. 
Effects  between  the  creditor  and  surety: 

When  surety  may  make  payment  before  being  reconvened: 

2379- 
Exceptions  which  surety  may  oppose  to  creditor:  2380. 
Reduction  to  which  surety  entitled  in  certain  cases :  2381 . 
Right  of  surety  to  compel  creditor  to  proceed  against  debtor: 

2382. 
Benefit  of  discussion :  requisites  to  enjoy:  2383,  2384. 
Property  not  to  be  considered  in  discussion :  2385. 
Renunciation  of  benefit  of  discussion  by  surety  not  extensive 

to  sub-surety :  2385. 
Advance  of  costs  of  discussion :  2386. 
Surety  entitled  to  discussion  of  what  property :  2387. 
Benefit  may  be  pleaded  once  only :  2388. 

Obligation  of  creditor  to  receive  proceeds  from  property  dis- 
cussed: 2389. 
Only  liability  of  surety  if  creditor  negligent  as  to  discussion: 

2390. 
Sub-surety  enjoys  benefit  of  discussion  as  to  debtor  and  surety : 

2391. 
Liability  of  each  surety  when  several  not  in  solidum :  2392. 

Insolvency  of  one  a  charge  on  others :  2392. 

Liability  of  co-surety  who  has  limited  his  liability  to  de- 
termined share :  2392. 
Effects  of  between  surety  and  debtor: 

Right  of  surety  to  be  relieved :  when :  2394. 
When  surety  entitled  to  bond  for  results  of  security :  2394. 
Right  of  action  for  reimbursement  of  expenditures :  2395. 
Right  of  action  of  surety  against  person  order  ng  security :  2396. 
Other  rights  and  obligations  of  surety  and  debtor:  2397-2402. 
Effects  of,  among  co-sureties :  2403-2405. 
Extinction  of :  2406-2408. 


666 

Mortgage  security :  what  is  called :  2454. 

To  be  given  by  provisional  possessor  of  property  of  absentee :   104. 

SELF  Moving  : 

What  things  are  called :  655. 

Separation  : 

Of  property  of  spouses: 

What  is  called  simple  separation  of  property:  197. 

Power  to  demand  cannot  be  renounced  in  marriage  agreement : 
198. 

Woman  under  age  requires  curator  to  request :  199. 

Cases  in  which,  shall  be  decreed :  200. 

Measures  during  suit  for :  201. 

Confession  of  husband  as  to  bad  state  of  affairs :  202. 

Delivery  to  be  made  after  separation :  203. 

Administration  of  wife  separate  in  property  and  duties  of 
spouses  separate  in  property  regarding  family :  204,  205. 

Responsibility  of  wife  and  husband  for  acts  of  former  in  state  of 
separation:  206. 

Responsibility  of  husband  to  whom  wife  confers  administra- 
tion of  separate  property :  207. 

When  curator  for  wife  to  be  appointed :  208. 

Manner  of  terminating  separation  on  account  of  bad  state  of 
affairs  of  husband :  209. 

Effects  of  resumption  of  administration  by  husband :  210. 

Marriage  agreements,  in  which  wife  to  administer  her  property : 

2.12\ 
Acquisitions  of  wife  under  condition  that  husband  shall  not 

participate  therein :  2 1 1 . 

Separation,  Benefit  of  : 

See  Benefit  of  Separation. 


Sequestration  : 
Defined:  2273. 
Rules  governing :  2274. 
What  may  be  the  subject  of :  2275. 
Is  conventional  and  judicial :  2276. 

Obligations  of  depositors  as  to  expenses  and  damages :  2277. 
Action  of  sequestrator  when  seizin  of  thing  deposited  lost :  2238. 
Powers  and  duties  of  sequestrator  of  immovable :  2279. 
Relief  of  sequestrator  from  charge :  2280. 
Delivery  of  deposit  to  person  to  whom  awarded :  228  j  . 

Servants  : 

Their  domicile,  that  of  their  masters :  89. 
D omestic :  Hiring  of : 

Defined:  2045. 

Rules  governing :  2046-2052. 

Services,  Immaterial: 

Rules  concerning  some :  2064-2069. 


667 


Servient  Tenement: 
See  Servitude. 


Servitudes  : 

Of  aqueduct: 

Things  not  subject  to  this  servitude :  920. 

Of  what  it  consists :  919. 

Rules  relating  to :  921-930. 
Predial  or  simply  servitude :  denned:  879. 
Servient  tenement :  defined :  880. 
Dominant  tenement:  defined:  880. 
When  called  active  and  when  passive :  880. 
Continuous:  defined:  881. 
Intermittent:  defined:  881. 
Positive:  defined:  882. 
Negative:  defined:  882. 
Apparent:  defined:  882. 
Non-apparent:  defined:  882. 
Inseparable  from  tenements :  883. 

Effects  of  division  of  servient  or  dominant  tenement :  884. 
Right  to  extends  to  means  necessary  to  exercise  it :  885. 
Who  to  bear  expense  of  exercising :  886. 
Modification  of,  charged  on  tenement :  887. 
Natural:  defined:  888. 
Voluntary:  defined:  888. 

Provisions  without  prejudice  to  Police  Code,  etc. :  889. 
Extinction  of: 

How  extinguished :  942. 

Rule  when  dominant  tenement  property  of  a  number  pro  indi- 
viso:  943. 

When,  revive:  944. 

vSpecial  mode  of  exercising,  acquired  and  lost  by  prescription : 

945- 
Legal: 

Defined:  888. 

Relative  to  public  use :  897. 

Use  which  navigators  may  make  of  shores :  898. 
Of  private  utility : 

Of  bounds :  rights  and  obligations  of  owners  of  adjoining 
tenements:  899-904. 
Of  transit  or  right  of  way :  905. 
If  indemnity  for  and  exercise  of  not  agreed  upon,  may  be  fixed 

by  experts:  906. 
Cases  in  which  it  terminates :  907. 
When  tenement  divided :  908. 
Of  light: 

Purpose  of :  931. 
Rules  regarding :  932-934. 
When  it  ceases :  934. 
Natural: 

Defined:  888. 

Inferior  tenement  obliged  to  receive  waters  descending  from 

superior  tenement :  89 1 . 


668 

Use  that  owner  of  tenement  may  make  of  waters  running 

through:  891. 

Limitations  as  to :  893. 
Use  of  waters  running  between  two  tenements :  894. 
Waters  running  along  artificial  channel :  895. 
Rain  waters  in  public  roads :  896. 
Party  division: 

Is  a  legal  servitude:  909. 

When  it  exists :  910. 

When  wall  presumed  to  be :  911. 

How  private  party  wall  may  be  made  common :  912. 

Building  on  party  wall  and  restrictions  to  right  of :  913. 

Cases  in  which  police  laws  to  be  observed :  914. 

Rules  to  be  observed  by  co-owner  desiring  to  raise  party  wall : 

915- 

Construction,  maintenance  and  repair  of  party  wall,  etc.:  916. 
Trees  in  party  division :  and  right  to  fell :  9 1 7. 
Voluntary: 

Liberty  of  owners  as  to :  937. 

If  owner  of  two  tenements  establishes  service  in  favor  of  one,  it 

subsists  as  servitude  if  divided :  938. 
How  continuous,   intermittent,   apparent  and  non-apparent 

acquired:  939. 
Title  constituting  may  be  supplied  by  express  acknowledgment : 

940. 
Title  or  possession  of  determines  rights  of  tenements :  94 1 . 

Set  off  : 

See  Compensation. 

Sewer  : 

Cannot  be  directed  over  neighboring  tenement  not  subject  to  such 
servitude:  891. 

Shop  : 

Opening  of,  presumption  of  intention  to  take  up  residence :  80, 

Singers  : 

Rules  applicable  to  services  of :  2064. 

Singular  Title  : 
Defined:  1008. 

Slavery : 

Prohibited:  art.  22  of  Const.,  p.  12. 

Soldiers  : 

Permitted  to  make  privileged  testament :  1098- 1 104. 
Property  of,  not  subject  to  attachment :  1677. 

Solemn  Contract  : 
Defined:  1500 


669 

Solidarity  : 

See  Obligations,  Solidary. 

Soul  : 

Testamentary  assignment  for :  what  is  understood  by:   1113. 

Specification  : 

Defined :  a  species  of  accession :  732. 
See  Accession. 

Spendthrifts  : 

See  Prodigals. 

Spouses  : 

Their  rights  and  obligations :  1 76-178. 

Mutual  obligation  to  support :  179. 

Partnership  contracted  between :  1 80. 

Representation  by  husband  of  wife :   181. 
Authority  to  appear  in  court :  181. 

Acts  which  wife  cannot  execute  without  authority :  182. 
How  granted:   183. 

Wife  does  not  require  authority  for  testamentary  acts :   1 84. 

Authority  of  husband  may  be  general  or  special :   185. 
Is  revocable,  not  retroactive:   186. 

Husband  may  ratify  acts  of  wife :  1 87.  # 

Authority  of  husband  may  be  supplied  by  Judge :  1 88. 

Alienation  of  real  property  belonging  to  wife :  1 89. 

Provision  in  case  of  suspension  of  marital  power :  1 90. 

Difference  between  effects  of  marital  and  judicial  authority:  191. 

Cases  in  which  authority  of  husband  presumed :  192. 

Husband  under  eighteen  needs  curator  for  administration  of  con- 
jugal partnership :  193. 

Modifications  to  which  foregoing  provisions  subject :  194. 

Separation  of  property  of :  See  Separation  of  Property. 
See  Conjugal  Portion. 

Stepfather : 

Cannot  be  guardian  of  stepchild :  590. 

Stirpes  :  Succession  per  : 
What  is:  1042. 

Store : 

Opening  of,  constitutes  presumption  of  domicile :  80. 
Special  liability  of  lessor  of :  203 1 . 

Subrogation  : 

Payment  with :  See  Payment. 
Defined:   1666. 


Substitutions:  Substitutes: 
Simple:  defined:  12 15. 


670 

Made  to  supply  any  case  of  absence  of  assign,  understood  as  for 

all:  1 2 16. 
Degrees  of:   12 17. 

One  or  a  number  may  be  substituted,  or  vice  versa:  1 2 1 8. 
Division  among  co-assigns  of  portion  of  substitute  absent  in 

mutual  substitution :  1 2 1 9. 
When  substitute  of  substitute  considered  called :   1220. 
If  assign  legitimate  descendant  of  testator :  1 22 1 . 
Right  of  transmission  excludes :  1222. 
Right  of,  excludes  right  of  accretion :   1222, 
Intrust:  defined:  1223. 

Rules  governing :  1223-1225. 

Succession  Mortis  Causa  : 

Universal  title :  defined:  1008. 

Singular  title :  defined:  1008. 

Testamentary:  defined:  1009. 

Assignments  mortis  causa,  defined :   10 10. 

Assign:  defined:  10 10. 

Inheritance:  defined:  ion. 

Legacies :  defined :  1  o  1 1 . 

Heir:  defined:   ion. 

Legatee:  defined:  ion. 

When  and  where  succession  opened :   1  o  1 2 . 

Delation  defined:,  10 13. 

When  inheritance  or  legacy  deferred :  1  o  1 3 . 

When  right  to  accept  or  repudiate  inheritance  or  legacy  transmitted 
to  heir:  1014. 

Reciprocal  succession  of  two  persons  when  not  known  which  died 
first:  1015. 

Deductions  from  estate:  1016. 

Fiscal  taxes  on  entire  or  part  of  estate :  1  o  1 7 . 

Who  may  succeed:  10 18. 

Requisites  to  be  able  to  succeed :  1019.         * 

Who  incapable  to  receive  inheritance  or  legacy :  1020,  102 1 . 

Priests,  etc.,  cannot  receive  inheritance  or  legacy :  1022. 

Confessor  of  deceased,  and  certain  relatives  of,  cannot  receive  leg- 
acy: 1022. 

Nullity  of  certain  dispositions :  1023. 

When  incapacitated  person  acquires  inheritance  or  legacy:  1024. 

Who  unworthy  to  succeed:  1025-1027,  1029. 

insane,  deaf  and  dumb,  and  impubes: 
1027. 

Unworthiness  of  executor  or  guardian  excusing   himself  without 
legal  cause:  1028. 

Unworthiness  cannot  be  pleaded  against  testamentary  provisions 
subsequent  to  acts  producing  same :  1030. 

Unworthiness  must  be  declared  by  court :  103 1 . 
when  purged:  1032. 

Inheritance  of  unworthy  transmitted  with  same  vice  of  unworthi- 
ness as  of  its  author :  1034. 

Hereditary  or  testamentary  debtors  may  oppose  exception  of  un- 
worthiness: 1035. 


67i 

Incapacity  or  unworthiness  docs  not  deprive  of  right  to  support: 

1036. 
Except  when:  1036. 
Intestate: 

Defined:  1009. 

In  what  property  regulated :  1037. 

Origin  of  property  not  considered;  1038. 

Sex  and  primogeniture  not  considered :  1039. 

Who  called  by  law  to :  1040. 

By  personal  right  or  by  right  of  representation :  1041. 

Who  inherits  per  stirpes  and  who  per  capita:  1042. 

When  representation  takes  place :  1043. 

Who  may  be  represented :  1044. 
Legitimate  children  exclude  other  heirs :   1045. 

Excepting  natural  children:  1045,  art.   28  of  law   57  of 
1887,  p.  549. 
Mode  of  succession  in  absence  of  legitimate  posterity :  1046. 

ascendants:  1047. 
brothers,    spouse    or    natural 
children:  1048. 
Of  natural  child  without  leaving  descendants :  1050. 
In  absence  of  any  next  of  kin  fisc  succeeds :  105 1 . 
By  testament  and  ab  intestato  jointly :  1052. 
Foreigners  called  to,  as  natives :  1053. 
Rights  in  succession  of  foreigner  dying  within  or  without  the 

Republic  and  succession  of  citizens  of  latter  leaving  prop- 
erty abroad:  1054. 
Acceptance  and  repudiation: 

Every  assign  may  accept  or  repudiate  freely :  1282. 
Condition  cannot  be  made,  nor  to  or  from  certain  day :  1 284. 
Part  of  assignment  cannot  be  accepted  and  remainder  repu- 
diated: 1285. 
Acceptance  supposed  by  sale  of  object  deferred :  1287. 
Removal  of  effects  belonging  to :  1288. 
Period  within  which  acceptance  or  repudiation  to  be  made: 

1289. 
Repudiation  when  presumed :  1290. 
Acceptance  cannot  be  rescinded  except  when :  1291. 
Repudiation  not  presumed  of  right:  1292.    * 

Intervention  of  judicial  authorities  in  certain  cases:  1293. 

Force  or  fraud  in :  1 294. 

Action  of  creditors  against,  to  their  prejudice :  1295. 
Retroaction  of  acceptance  or  repudiation :  1 296. 
Opening  of:  y 

Preliminary  steps :  1 2  79. 

When  property  in  different  places :  1 280. 

Cost  of  care,  etc.,  of  property  of :  1281. 

Support : 

To  whom  due:  411. 
Rules  for  furnishing :  412. 
Congruous  and  necessary :  413. 
To  whom  congruous  due:  414. 


672 

Those  incapable  of  exercising  right  of  ownership  not  incapable  to 

receive:  415. 
He  who  entitled  to,  under  various  titles,  which  to  use :  416. 
Provisional:  417. 

Liability  if  fraud  in  demanding:  418. 
Rules  governing  taxation  of :  4 1 9-42 1 
From  when  due :  42 1 . 
How  to  be  paid:  421. 

Duration  of,  assigned  by  law,  and  form  and  amount :  422,  423. 
Right  to  demand  is  personal  and  not  compensable :  424,  425. 
Rules  when  in  arrears :  426. 
Exception   as   to   voluntary:  427.     See   Children,    Legitimate: 

THEIR  RIGHTS. 

Effects  of  disinherison  do  not  extend  to  necessary :  1 268. 


Suretyship  :  See  Security. 

Surgeons  : 

Prescription  of  fees  of:  2542. 

Surrender  of  Property  : 

In  payment :  See  Payment  by  cession  of  property  : 

■ 

Syndics  in  insolvency  proceedings : 

Prohibitions  as  to  purchase  and  sale  of  certain  property :  1856 

Tavern : 

Establishment  of,  causes  presumption  of  domicile :  80. 


Tenant  : 

See  Lessee. 

Tender : 

Of  payment:  Requisites  of :  1658. 

Must  precede  consignment :  1 658. 
To  whom  to  be  made  if  creditor  absent :  1 661 . 
Expenses  of,  and  of  consignment :  1 662. 
See  Payment  by  consignment. 

Tenement: 

What  is  called :  656. 

Dominant  and  servient :  See  Servitudes. 

Terms: 

Of  the  law :  how  to  be  construed :  28. 
Technical,  of  arts  and  trades :  how  to  be  construed :  29. 
Of  frequent  use  in  laws :  definitions :  33-70. 
Of  days,  months  or  years,  must  be  complete :  67. 
How  to  be  computed :  67,  68. 
To  include  holidays :  70. 
Excepting  when :  70. 

Territory  : 

Application  of  term:  law  57,  1887,  art.  2,  pp.  11,  543. 


673 

TlCSTAMENT : 

What  is  understood  by:  1055. 

What  donations  and  promises  considered :  1056. 

Revocability  of  dispositions  of :  1057. 

Value  of  papers  to  which  testator  refers :  1058. 

Is  act  of  a  single  person :  1059. 

Power  to  testate  cannot  be  delegated :  1060. 

Who  cannot  make  a  testament :   106 1 . 

Nullity  of  testament  executed  during  inability :  1062. 

Executed  by  force  is  null :  1063. 

Is  solemn,  privileged,  open  and  sealed :   1064. 

Judge  competent  to  open  and  publish  and  proceedings :  1065,  1066, 

When,  of  absentee  to  be  opened  and  published :  99. 

Privileged: 

What  is:   1087. 

Who  may  be  witnesses  in :  1088. 

Principal  formalities  necessary  in :  1089. 

Number  of  witnesses  necessary  in  verbal :  1 090. 

How  testator  to  make  his  declarations :  109 1 . 

When  verbal  testament  may  be  made  and  when  of  no  value : 
1092,  1093. 

Proceedings  which  must  precede  reduction  of  testament  to 
writing:   1094,  1095. 

Embodied  in  judicial  decree  may  be  impugned :   1097. 

Military  and  maritime :  provisions  regarding :  1 09 7-1 1 12. 
Reform  of: 

Action  to  secure :   1 2  74. 

Term  within  which  must  be  brought  and  right  comprised : 

1275. 
When  forced  heir  ignored :   1276. 

Right  of  forced  heirs  when  testator  disposes  of  betterment  quar- 
ter in  favor  of  strangers :  1 2  7  7 . 
Action  to  secure  of  the  surviving  spouse :  1 278. 
Revocation  of: 

May  be  revoked  totally  or  partially :  1 2  70. 
Of  solemn:   1271. 

If  testament  revokes  prior  one  in  its  turn  revoked,  first  testa- 
ment does  not  revive :   1272. 
No  implied  revocation  by  existence  of  one  or  more  later  ones : 
1272,  1273. 
Sealed: 

Before  whom  executed :   1078. 

Who  cannot  execute :   1079. 

What  constitutes :   1080. 

Statements  to  be  made  in :   1080. 

When  person  cannot  understand  or  be  understood  viva  voce: 

1081. 
Formalities  for  execution  and  formalities  of :  1082. 
Solemn: 

Is  always  in  writing:   1067. 
Who  cannot  be  witnesses  in  :   1068. 

Shall  not  be  invalidated  by  incompetency  of  one  witness  when : 
1069. 


674 

And  open,  must  be  executed  before  whom :  1070,  107 1. 

What  essentially  constitutes  open :   1072. 

Statements  and  designations  to  be  contained  in:  1073. 

Before  whom  to  be  read :  1074. 

Signatures  necessary :  1075. 

Of  a  blind  person:  special  formalities  for:   1076. 

Form  of  publication,  if  not  executed  before  notary :  1077. 

Omissions  which  do  or  do  not  annul :   1 083. 

Executed  in  a  foreign  country :  validity  of:   1084,  1085. 

Formalities   to   be   observed   and   protocolization :   1085, 

1086.. 


Testamentary  Succession: 
Defined:  1009. 

See  Succession  Mortis  Causa. 

Thing  Sold: 

What  things  may  be  sold :   1 866. 

Nullity  of  sale  and  stipulation  regarding  certain  things:   1867. 

Common  things  pro  indiviso:  1868. 

Things  which  do  not  exist :   1 869. 

Thing  supposed  to  exist  but  does  not :   1 870. 

sold  of  another :   1 8  7 1 . 
Purchase  of  one's  own  thing  not  valid :  1872. 
See  Sale;  Purchase. 

. 
Things: 

Corporeal: 

What  are:  653. 

Division  into  movables,  self  moving,  immovables  or  real :  654- 
656. 

Immovables:  what  are:  657,658,660,661. 

Movables,  what  are  considered :  659,  660. 
Fungible  and  not  fungible :  663. 
Incorporeal: 

Are  real  and  personal  rights:  664. 

Real  rights  enumerated  :  source  of  real  actions :  665. 

Personal  rights:  what  are:  666. 

Rights  and  actions  considered  movables  or  immovables:  667. 

Ouasi  ownership  of :  670. 
Lost: 

Defined:  704.  705. 
Unclaimed: 

What  are :  706. 

To  whom  they  belong:  707. 

Must  be  returned  if  owner  demands  them  before  sale :  708. 

After  sale  irrevocably  lost  to  owner :  709. 
Vacant: 

What  are :  706. 

To  whom  they  belong :  707. 

When  restored  to  owner:  708. 

When  irrevocably  lost  to  owner :  709. 


675 

• 

Title : 

Just:  what  is:  765. 

not:  766. 
Universal:  defined:   1008. 
Singular:  defined:   1008. 

Tools  : 

Which  not  subject  to  attachment :  1677. 


Tradition  : 

Defined:  740. 

Transferrer  and  transferee  defined :  74 1 . 

Who  may  deliver  and  receive :  74 1 . 

Legal  representative  of  transferrer  in  forced  sales :  74 1 . 

Requisites  for  validity  of:  742,  743. 

when  mandataries  or  legal  representatives  intervene :  744. 
Valid  title  transferring  ownership  indispensable :  745. 
Error  as  to  identity  of  thing  or  person  :  746. 
title:  747. 
of  mandatary  or  legal  representatives :  invalidates :  748. 
When  law  requires  special  formalities  for,  ownership  not  transferred 

without :  749. 
Transfer  of  ownership  by,  under  suspensive  or  resolutory  condition  : 

750. 
When  tradition  of  thing  owed  may  be  demanded :  751. 
By  person  not  owner  of  thing  delivered;  what  rights  transferred: 

752. 
Right  to  prescription  which,  confers  upon  transferee:  753. 
Of  corporeal  movables: 
How  effected :  754. 
Of  stones,  fruits,  etc. :  755. 
Of  immovables : 

Of  hereditary  and  incorporeal  property :  756. 

ownership  of:  756. 
•    right  of  usufruct,  use,  habitation  and  mortgage:  756. 
Registration  of  ownership  or  other  right  recognized  by  judicial 

decree  necessary :  758. 
Titles  requiring  registration  do  not  confer  possession  until  re- 
corded: 759. 
Of  a  right  of  servitude  and  of  personal  rights  assigned :  760,  761. 
, 
Transaction  : 

What  is  understood  by :  2*469. 
Who  may  transact :  2470. 
Agent  needs  special  power  for :  247 1 . 
In  matters  of  crimes :  2472. 
PJAs  to  the  civil  status  of  persons  prohibited :  2473. 
On  future  support :  2474. 

rights  of  others  or  those  not  existing :  2475. 
Obtained  by  forged  titles,  fraud  or  violence :  2476. 
Entered  into  in  consideration  of  void  title :  2477. 
"*"     Involving  judgment:  2478. 

When  presumed  to  be  accepted :  2478. 

1 


676 

Error  as  to  identity  of  object  or  error  in  calculation :  2480,  2481 . 
Discovery  of  titles  which  did  not  figure  in :  2482. 
Effects  of:  2483,2484. 
Renunciation  of  all  rights  in :  2485. 
Stipulation  of  penalty  in :  2486. 

Transients:  75. 

Transportation  : 
See  Hire. 

Treasure  Trove  :  699-705. 

Trees : 

In  party  divisions :  917. 

Planting  of  within  certain  distance  from  walls  may  be  prohibited : 

998. 
Branches  and  roots  penetrating  another's  soil :  999. 
Ownership  of  fruits  of  branches  projecting  over  another's  land :  1000. 
Obligation  of  lessee  of  rural  property:  2038,  2039. 


Trust  :  Trustee  :  See  Fiduciary  Property. 

Tutors : 

Who  are  so  called :'  428. 

When,  may  be  given  person  under  paternal  power :  438. 

Cannot  be  given  person  having  one :  440. 

When  additional  may  be  appointed  on  request  of :  44 1 . 

Procedure  when  ward  receives  donation,  inheritance  or  legacy  under 

condition  of  administration  by:  442. 
Duties  of,  with  regard  to  person  of  ward: 

Obligations  of,  regarding  bringing  up  and  education  of  ward : 

517- 

Steps  to  be  taken  by  in  case  of  negligence  on  part  of  person  in 
charge  of  education  of  ward :  518. 

Ward  must  not  reside  in  dwelling  of  certain  persons :  519. 

Expenses  to  be  defrayed  by,  for  education  of  ward :  520. 
Funds  from  which  to  be  taken :  52 1 . 

Proceedings  in  case  of  indigency  of  ward :  522. 
Administration  of  with  regard  to  property: 

Representation  of  the  ward  and  administration  of  his  prop- 
erty: 480,  481. 

If  the  guardian  subject  to  advisor  left  him  by  testament:  482. 

Alienation  or  encumbrance  of  property  of  ward :  483. 

How  sale  of  to  be  effected :  484. 

When  judicial  decree  necessary  for  sale,  etc.,  of  ward's  prop- 
erty: 484. 

Division  of  property  of  ward :  485. 

Repudiation  or  acceptance  of  inheritance  deferred  to  ward :  486. 

Requisites  for  acceptance  or  repudiation  of  legacies  or  dona- 
tions: 487. 

Judicial  decree  necessary  to  effect  compromises,  etc. :  489. 

for  partition  of  inheritance :  488. 


677 

Money  left  or  donated  ward  for  purchase  of  real  property :  490. 

Donation  of  property  belonging  to  ward :  491. 

Gratuitous  remission  of  rights  of  ward :  492. 

Payment  of  debt  to  tutor  is  a  discharge :  494. 

Investment  of  funds  of  ward :  495. 

Lease  of  estates  of  ward :  496. 

Collection  of  debts  in  favor  of  ward :  497. 

Interruption  of  prescription  against  ward :  498. 

Advances  which,  may  recover  and  requisites  for :  499. 

Statement  to  be  embodied  in  acts  executed  by :  500. 

Acts  for  which  authority  of  other  tutors  necessary  or  of  court, 

etc. :  501,  502. 
Allowance  of  expenses  during  administration :  503. 
Accounts  to  be  kept  and  sudmitted :  504. 

Account  which  judge  may  demand  of,  in  interests  of  ward :  505. 
Property  to  be  turned  over  upon  expiration  of  guardianship : 

506. 
Accounts  when  administration  divided :  507. 
Liability  of,  and  when  subsidiary :  508. 

solidary    when    administration     divided    among 
tutors  by  private  agreement:  510. 
Account  of  curator  to  be  examined  by  whom  1511. 
Damages  from  fraud  or  fault :  512. 
Interest  on  balances :  513. 
Prescription  of  actions  of  ward  against :  514. 
Exercise  of  charge,  without  being :  515. 

Administration  of  property  of  ward  in  case  of  necessity :  5 16. 
Compensation  of: 

What  is,  and  how  distributed  :  614,  615. 
Disbursements  by,  in  discharge  of  functions :  616. 
Computation  of  allowance  made  to  testamentary  tutor:  617. 

Effect  of  excuses  and  incapacities  pre-existing  as  to:  618, 
619. 
Careless  or  fraudulent  administration  by :  62 1 . 
When  property  of  ward  insufficient  except  for  bare  support: 

622. 
When  tenth  may  be  collected  and  how  determined :  623-625. 
Of  certain  special  curators :  626. 
Removal  of: 

Causes  for:  627. 

Habitual  carelessness  in  administration,  when  presumed:  628. 

From  one  guardianship,  cause  for  removal  from  others:  629. 

Who  may  request :  630. 

Appointment  of  provisional  tutor  pending  proceedings  for :  63 1 . 

Criminal  and  civil  liability  of  tutor  removed :  632. 


Tutorships  : 

What  are:  428. 

Exceptions  and  modifications  of  provisions  governing:  429. 
Extension  of:  431. 
Who  subject  to:  431,  432. 

Two  or  more  persons  may  be  placed  under  one,  and  one,  may  be 
discharged  by  two  or  more  persons :  437. 


678 

May  be  testamentary,  legal  or  dative :  438. 
Measures  prior  to  exercise  of:  confirmation  :  463. 
Requisites  for  confirmation :  464. 
When  surety  required :  465. 
Mortgage  may  be  given  instead  of  surety :  466. 
Acts  of  tutor  prior  to  confirmation :  467. 
Inventory  to  be  made  by  tutor:  468. 

Testator  cannot  relieve  tutor  from  making  inventory :  469. 
When  formal  inventory  may  be  omitted :  470. 
Form  of  formal  inventory :  471. 
Rules  governing  inventories :  472-474. 

Assertion  in  inventory  not  sufficient  proof  as  to  ownership:  475. 
Errors  committed  in  inventory :  476. 

Liability  of  tutor  regarding  things  comprised  in  inventory  not  de- 
livered to  him :  477. 
Obscure  passages  in  inventory :  478. 
Inventory  of  tutor  succeeding  another :  479. 
Incapacities  for:  See  Incapacities. 
Excuses  from  exercising :  See  Excuses. 
Dative: 

When  it  takes  place :  460. 
temporary:  461. 

In  selection  of  tutor,  relatives  of  ward  to  be  heard :  462. 

Several  persons  may  be  appointed  to  one :  462. 
Legal: 

When  it  takes  place :  456. 

Who  are  called  thereto :  457. 

Of  natural  child :  458. 

If  legal  guardian  cease,  another  to  be  appointed  if,  to  continue : 

459- 
Testamentary: 

To  whom  legitimate  father  may  appoint :  444-446. 

Wlien  legitimate  father  cannot  appoint :  447. 

When  mother  may  appoint :  448. 

When  natural  father  or  mother  may  appoint :  449. 

Conditions  under  which  any  person  may  appoint  testamentary 
tutor  and  limitations  of  such :  450. 

Two  or  more  testamentary  tutors  may  be/  appointed  and  ad- 
ministration divided :  45 1 . 

Over  persons  and  property  of  a  number  of  wards :  452. 

If  a  number  of  tutors,  Judge  may  divide  functions,  etc. :  453. 

Tutors  may  be  appointed  to  succeed  or  substitute :  454. 

Susceptible  of  conditions :  455. 

Unilateral  Contract: 
Defined:  1496. 

Union  : 

Application  of  term  :  law  57,  1887,  art.  2,  pp.  11,  543. 
Property  of:  what  is:  674,  675. 

Universal  Title:  ' 

Defined:   1008. 


679 

Unworthinicss  TO  vSucceed: 

See  Successions  Mortis  Causa. 

Use  and  Habitation  ; 

Rights  of:  defined:  870. 

How  established  and  lost :  871. 

Surety  not  required :  872. 

Inventory  necessary :  872. 

Extent  of  rights  to  be  established  in  title  granting:  873. 

Limited  to  family  and  personal  necessities :  874. 

What  family  comprises :  875. 
Rights  of  persons  having  use  of  estate :  876. 
How  objects  subject  to,  to  be  used :  877. 
Personal  and  not  heritable :  878. 
Fruits  subject  to  consumption  mav  be  transferred  :  878. 

Usufruct  : 

What  is  understood  by :  823. 

vSupposes  two  co-existing  rights :  824. 

How  constituted :  825. 

On  realty  by  act  inter  vivos:  826. 

Under  a  condition  or  subject  to  a  term  :  827. 

Successive  or  alternative  forbidden :  828. 

May  be  established  for  specific  time  or  life :  829. 

In  favor  of  corporation  or  foundation :  duration  of:  829. 

Condition  may  be  added  to :  830. 

In  favor  of  two  or  more  persons  to  enjoy  simultaneously :  83 1 . 

Not  transmissible  mortis  causa:  832. 

State  in  which  usufructuary  to  receive  thing :  833. 

Surety  and  inventory :  834. 

Owner  preserves  administration  until  furnished:  835. 
Measures  if  not  furnished :  836. 
When  owner  cannot  question  inventory :  837. 
Owner  cannot  prejudice  usufructuary  in  exercise  of  right :  838. 
Right  of  accretion  if  two  or  more  usufructuaries :  839. 
Fruits  to  which  usufructuary  entitled :  840. 
Servitudes  in  favor  and  against  estate  in  usufruct :  841. 
Enjoyment  of,  extends  to  wooded  land :  842. 
When  mines  or  quarries  comprised  in :  843.  * 
Of  tenement,  extends  to  natural  accessions :  844. 

Not  to  treasure  trove :  845. 
Usufructuary  of  movable:  rights  of:  846. 

cattle  and  herds :  rights  of:  847. 
fungible  things :  rights  of:  848. 
Civil  fruits,  how  they  belong  to  usufructuary :  849. 
Agreements  between  naked  owner  and  usufructuary  to  be  respected : 

850. 
Lease  of  thing  subject  to,  to  be  respected  :  85 1 . 
May  be  given  in  lease,  etc.,  by  usufructuary:  852. 
Resolution  of  contracts  made  bv  usufructuary  as  to  thing  subject 

to:  853. 
Expense  of  preservation  and  cultivation :  854. 
Periodical  charges  on  thing  subject  to :  855. 


68o 

Improvements  of  thing  subject  to :  856,  857. 

Collapse  of  building  through  age  or  fortuitous  event:  who  to  re- 
build: 858. 

Right  of  retention  by  usufructuary:  859. 

Voluntary  improvements  made  by  usufructuary :  860. 

Liability  of  usufructuary :  86 1 . 

Actions  of  creditors  of  usufructuary  on  usufruct :  862. 

How  extinguished :  863,  865. 

Time  during  which  usufructuary  has  not  enjoyed,  included  in  legal 
duration  of:  864. 

Extinguished  by  complete  destruction  of  thing  subject  to :  866. 
Not  by  partial  destruction :  866. 

Of  estate  when  flooded :  867. 

Decree  of  Judge  terminates :  868. 

Legal :  rules  to  which  that  of  father  and  husband  subject :  869. 

Uterine  Brothers  : 
Who  are :  54. 

Vendee : 

See  Purchaser. 

Vendor : 

Obligations  of :   1 880. 
Costs  to  be  borne  by :   1881. 
Delay  in  delivery  by:   1882. 

receiving  by  purchaser :   1 883. 
What  to  deliver :   1884 

is  comprised  in  sale  of  female  animal :   1 885. 
an  estate:   1886. 
When  sale  of  rural  property  understood  in  relation  to  area  and  when 

as  a  specific  thing :   1887. 
Actions  of  contracting  parties  when  declared  area  greater  or  less 

than  actual  area :  1888. 
Obligations  of,  when  property  sold  by  bounds :   1 889. 
Prescription  of  actions  granted :   1 890. 
Rules  apply  to  any  lot  of  things :   1 89 1 . 

Contracting  parties  have  right  of  action  for  lesion  beyond  moiety : 
1892. 

Vice  Consul  : 

Testament  authorized  by  in  foreign  country  not  valid :   1085. 

)VagER : 

See  Gambling  and  Betting  : 

Wages  : 

Prescription  of  those  of  employees  and  servants :  2543. 

Walls,  Party: 

See  Servitudes. 

Ward: 

Who  is  called:  436. 


68i 


Warden  : 

Notice  to  be  given  by,  of  deaths  occurring  in  prison :  359. 

Warehouse  : 

Lease  of :  See  Lease  of  buildings. 

Warranty : 

Of  hereditary  effects  : 

Right  and  obligation  of  co-participants :  1402. 
A  gainst  eviction  in  sale: 

Objects  comprised  in  eviction :   1893. 

When  of  a  thing  purchased :   1 894. 

Obligation  of  vendor  as  to  eviction :   1 895. 

When  action  for  indivisible :   1896. 

Right  of  purchaser  against  third  person  from  whom  vendor 
acquired  the  thing:   1897,1900. 

Nullity  of  agreement  relieving  from,  when  bad  faith :   1 898. 

Citation  of  vendor  when  purchaser  sued,  and  effects  of  omis- 
sion: 1899. 

Against  whom  suit  to  be  continued :  1 90 1 . 

Even  if  vendor  agree  to  warranty,  purchaser  may  continue  suit : 
1902. 

When  obligation  of ,  ceases :  1903. 

Against  eviction,  comprises  what :  1904. 

Improvements  which  vendor  obliged  to  reimburse :   1906. 

Increased  value  due  to  natural  causes,  when  allowed :  1907. 

Obligation  in  case  of  forced  sale :   1 908. 

Whether  or  not  vendor  must  restore  right  to  demand  rescission 
of  sale:  1909. 

Effects  of  rescission  of  sale :  1 9 1  o. 

Of  partial  eviction :  1911. 

Liability  of  vendor  for  damages  when  judicial  decision  denies 
eviction:  191 2. 

Prescription  of  action :  from  when  computed :  19 1 3. 
Against  redhibitory  vices: 

What  is  understood  by  redhibitory  action :  19 14. 

vice:  1915. 

Vices  which  vendor  obliged  to  warrant  notwithstanding  stipu- 
lation to  contrary :  1 9 1 6. 

What  right  redhibitory  vices  give  purchaser :  191 7. 

When  vendor  liable  for  damages :  1 9 1 8. 

Rule  when  vicious  thing  destroyed  after  contract  of  sale  per- 
fected: 19 19. 

Parties  may  make  vices  redhibitory,  which  naturally  are  not : 
1920. 

Redhibitory  action  as  to  vicious  thing  when  purchased  with 
others:   192 1. 

Lies  in  forced  sales,  when :  1922. 

When  prescribed  and  how  prescription  computed:  1923. 
Right  of  purchaser  after  prescription  of:  1924. 

When  reduction  of  price  only  lies :   1925. 

Prescription  of  action  for  reduction  of  price :  1926,  1927. 


682 


Water  Rights  : 

Granted  by  competent  authorities  without  prejudice  to  former 
rights:  918. 

Waters  : 

Servitudes  of,  and  use  that  owners  of  tenements  may  make  of :  891- 

895. 
Rain :  owner  of  tenement  may  use,  running  in  public  road,  etc. :  896. 

No  legal  servitude  as  to :  936. 
Removal  of  works  turning  direction  of :  993. 
Person  constructing  works  to  prevent  entrance  of,  not  responsible 

for  damage  to  others :  995. 
Obstruction  to  running,  must  be  removed :  996 . 
Damages  for  drainage  upon  neighboring  estate :  997. 
Use  of  by  mills,  etc. :   1001. 

Well: 

May  be  dug  upon  one's  own  ground :  1002. 

Proceedings  when  water  supply  of  nearby  well  diminished  by :  1002. 

Wet  Nurse  : 

Special  obligation  of,  when  her  services  hired :  2048. 

Widow  : 

Time  which  must  elapse  before,  can  remarry :  1 73—175. 

Widower  : 

Obligations  of  desirous  of  remarrying,  when  children  from  previous 
marriage:   169-172. 

Will,  Acts  and  Declaration  of  : 

See  Acts.  I 

- 

Wills: 

See  Testaments. 

Windows  : 

In  party  walls :  932,  933. 

Winnings  : 

No  right  of  action  to  recover,  in  gambling;  exception:  2283,  2284- 
2286. 

Witnesses  : 

Tomarriages:  126-130,135-137. 

In  the  registration  of  births  and  deaths:  356.  357. 

Suppletory  proof  of,  may  be  admitted  in  certain  cases  to  prove  civil 

status  of  persons :  395. 
In  testaments : 

Who  cannot  be :  and  how  many  must  be  domiciled  in  district 
and  know  how  to  read  and  write :   1068. 

Incompetency  of  one,  does  not  invalidate  testament :  1069. 

Nullity  of  dispositions  of  testator  in  favor  of :   1 1 1 9. 


683 

Identification: 

In  testaments :  1077,  1082. 
public  instruments :  2589. 
Attesting:  who  are  called    so    and  qualifications  requisite:  2586, 

2587. 

Woman  : 

What  is  understood  by  term  when  used  in  Code  :  33. 

Periods  of  infancy,  puberty,  etc. :  34. 

Married,  follows  the  domicile  of  her  husband :  87. 

Marriageable  age  of :  116. 

Within  what  time  widow,  etc.,  may  remarry :  173. 

If  married,  engaged  in  trade  or  profession,  authority  of  husband  for 

consequent  acts  presumed :  195. 
,  In  trade,  subject  to  rules  of  Code  of  Commerce :  196. 
Under  age  requires  curator  to  request  separation  of  property:  199. 
Under  marital  power,  cannot  obtain  qualification  as  to  age  from 

court:  341. 
Incapable  of  exercising  tutorship  or  curatorship,  when :  587. 
Cannot  be  witness  to  will :  1068. 

Woods,  Wooded  Lands  : 

To  what  extent  to  be  used  and  enjoyed  by  tenant,  when  received  in 

lease:  2038.     See  Lease. 
Enjoyment  of,  when  community  property :  2332.     See  Community. 

m 
Works,  New  : 

Actions  to  destroy,  prohibit,  etc. 
vSee  Actions,  Possessory. 

Worthy  : 

Who  considered,  to  succeed  mortis  causa:  10 18. 


